On October 1, 2009, Allen Ryan Alleyne and two accomplices robbed the store manager of a Mapco/East Coast convenience store in Petersburg, Virginia as he was dropping off the nightly deposit at the bank. In April 2010, after an extensive investigation, the authorities arrested Alleyne and a grand jury indicted him for robbery and possessing a firearm. On September 7, 2010, after a week-long trial, the jury convicted Alleyne on both counts and the United States District Court for the Eastern District of Virginia sentenced him to 130 months imprisonment.

Alleyne appealed to the United States Court of Appeals for the Fourth Circuit, claiming the district court made three specific errors: 1) the evidence against him wasn’t strong enough to support his convictions; 2) he was convicted of aiding and abetting the robbery and not carrying it out, which changed his original indictment; and 3) he should not have received a mandatory 7 year sentence for possession of a firearm. The Fourth Circuit rejected all three of his claims. First, the appellate court refused to overrule the jury’s decision on the strength of the evidence because a jury is best equipped to determine whether evidence is credible. Second, since aiding and abetting a crime is not itself a separate offense, it does not need to be included in the indictment and does not change the original charge. Finally, there was no indication that the district court should not have imposed the minimum sentence for possessing a firearm.

Question

1. Did the district court find enough evidence to convict Alleyne for armed robbery?

2. Did convicting Alleyne of aiding and abetting the robbery change the original indictment?

3. Should the court have imposed a minimum sentence for possession of a firearm in relation to a robbery?

No, yes, no. Justice Clarence Thomas delivered the opinion for the 5-4 majority. The Court held that the Sixth Amendment guarantees the accused a right to a trial by a fair and impartial jury, which can only be accomplished if all of the facts that are elements of the crime are presented to the jury. If an element of the crime increases the mandatory minimum punishment, it must be submitted to the jury and found to be true beyond a reasonable doubt. The Court also held that, because an indictment must contain every allegation legally essential to punishment, a defendant cannot be found guilty of a crime not included in the indictment.

In her concurring opinion, Justice Sonia Sotomayor wrote that, although the Court generally follows precedent, when the analysis supporting a previous decision has been sufficiently undermined, it is appropriate to overturn it. She argues that the majority’s opinion is not the result of judicial sentiment but rather a recognition of shifting Sixth Amendment jurisprudence. Justice Ruth Bader Ginsburg and Justice Elena Kagan joined in the concurrence. Justice Stephen G. Breyer wrote an opinion concurring in part and dissenting in part in which he argued that jury factfinding would serve as a check on judicial power to impose maximum or minimum sentences.

Chief Justice John G. Roberts, Jr. wrote a dissent in which he argued that the Sixth Amendment was intended to protect defendants from the government but does not limit a judge’s discretion within the limits set by the jury. Once a jury finds a defendant guilty, it is the judge’s duty to set a punishment within the appropriate limits, and there is no risk of judicial overreach within those limits. He also argued that the majority’s decision does not have a basis in judicial history. Justice Antonin Scalia and Justice Anthony M. Kennedy joined in the dissent. In his separate dissent, Justice Samuel A. Alito, Jr. wrote that the majority’s opinion alters judicial precedent simply because a majority disagrees with it, without the proper justification.

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NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 11–9335

_________________

ALLEN RYAN ALLEYNE, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the fourth circuit

[June 17, 2013]

Justice Thomas announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III–B, III–C, and IV, and an opinion with respect to Parts II and III–A, in which Justice Ginsburg, Justice Sotomayor, and Justice Kagan join.

In Harris v. United States,
536 U. S. 545 (2002)
, this Court held that judicial factfinding that increases the mandatory minimum sentence for a crime is permissible under the
Sixth Amendment. We granted certiorari to consider whether that decision should be overruled. 568 U. S. ___ (2012).

Harris drew a distinction between facts that increase the statutory maximum and facts that increase only the mandatory minimum. We conclude that this distinction is inconsistent with our decision in Apprendi v. New Jersey,
530 U. S. 466 (2000)
, and with the original meaning of the
Sixth Amendment. Any fact that, by law, increases the penalty for a crime is an “element” that must be submitted to the jury and found beyond a reasonable doubt. See id., at 483, n. 10, 490. Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an “element” that must be submitted to the jury. Accordingly, Harris is overruled.

I

Petitioner Allen Ryan Alleyne and an accomplice devised a plan to rob a store manager as he drove the store’s daily deposits to a local bank. By feigning car trouble, they tricked the manager to stop. Alleyne’s accomplice approached the manager with a gun and demanded the store’s deposits, which the manager surrendered. Alleyne was later charged with multiple federal offenses, including robbery affecting interstate commerce,
18 U. S. C. §1951(a), and using or carrying a firearm in relation to a crime of violence, §924(c)(1)(A). Section 924(c)(1)(A) provides, in relevant part, that anyone who “uses or carries a firearm” in relation to a “crime of violence” shall:

“(i) be sentenced to a term of imprisonment of not less than 5 years;

“(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

“(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.”

The jury convicted Alleyne. The jury indicated on the verdict form that Alleyne had “[u]sed or carried a firearm during and in relation to a crime of violence,” but did not indicate a finding that the firearm was “[b]randished.” App. 40.

The presentence report recommended a 7-year sentence on the §924(c) count, which reflected the mandatory minimum sentence for cases in which a firearm has been “brandished,” §924(c)(1)(A)(ii). Alleyne objected to this recommendation. He argued that it was clear from the verdict form that the jury did not find brandishing beyond a reasonable doubt and that he was subject only to the 5-year minimum for “us[ing] or carr[ying] a firearm.” Alleyne contended that raising his mandatory minimum sentence based on a sentencing judge’s finding that he brandished a firearm would violate his
Sixth Amendment right to a jury trial.

The District Court overruled Alleyne’s objection. It explained that, under Harris, brandishing was a sentencing factor that the court could find by a preponderance of evidence without running afoul of the Constitution. It found that the evidence supported a finding of brandishing, and sentenced Alleyne to seven years’ imprisonment on the §924(c) count. The Court of Appeals affirmed, likewise noting that Alleyne’s objection was foreclosed by Harris. 457 Fed. Appx. 348 (CA4 2011) (per curiam).

II

The
Sixth Amendment provides that those “accused” of a “crime” have the right to a trial “by an impartial jury.” This right, in conjunction with the Due Process Clause, requires that each element of a crime be proved to the jury beyond a reasonable doubt. United States v. Gaudin,
515 U. S. 506,
510 (1995)
; In re Winship,
397 U. S. 358,
364 (1970)
. The substance and scope of this right depend upon the proper designation of the facts that are elements of the crime.

A

The question of how to define a “crime”—and, thus, how to determine what facts must be submitted to the jury—has generated a number of divided opinions from this Court. The principal source of disagreement is the constitutional status of a special sort of fact known as a “sentencing factor.” This term was first used in McMillan v. Pennsylvania,
477 U. S. 79,
86 (1986)
, to refer to facts that are not found by a jury but that can still increase the defendant’s punishment. Following McMillan’s introduction of this term, this Court has made a number of efforts to delimit its boundaries.

McMillan initially invoked the distinction between “elements” and “sentencing factors” to reject a constitutional challenge to Pennsylvania’s Mandatory Minimum Sentencing Act, 42 Pa. Cons. Stat. §9712 (1982). That law provided that anyone convicted of certain felonies would be subject to a mandatory minimum sentence if the judge found, by a preponderance of evidence, that the person “ ‘visibly possessed a firearm’ ” in the course of committing specified crimes. 477 U. S., at 81, n. 1. While the Court acknowledged that there were constitutional limits to the State’s ability to “defin[e] crimes and prescrib[e] penalties,” it found that the Commonwealth had permissibly defined visible possession as a sentencing factor, rather than an element. Id., at 86. In the Court’s view, this allowed the judge, rather than the jury, to find this fact by a preponderance of evidence without violating the Constitution.

McMillan did not address whether legislatures’ freedom to define facts as sentencing factors extended to findings that increased the maximum term of imprisonment for an offense. We foreshadowed an answer to this question in Jones v. United States,
526 U. S. 227
, n. 6 (1999), but did not resolve the issue until Apprendi. There, we identified a concrete limit on the types of facts that legislatures may designate as sentencing factors.

In Apprendi, the defendant was sentenced to 12 years’ imprisonment under a New Jersey statute that increased the maximum term of imprisonment from 10 years to 20 years if the trial judge found that the defendant committed his crime with racial bias. 530 U. S., at 470. In defending its sentencing scheme, the State of New Jersey argued that, under McMillan, the legislature could define racial bias as a sentencing factor to be found by the judge. We declined to extend McMillan that far. We explained that there was no “principled basis for treating” a fact increasing the maximum term of imprisonment differently than the facts constituting the base offense. 530 U. S., at 476. The historic link between crime and punishment, instead, led us to conclude that any fact that increased the prescribed statutory maximum sentence must be an “element” of the offense to be found by the jury. Id., at 483, n. 10, 490. We, thus, found that Apprendi’s sentence had been unconstitutionally enhanced by the judge’s finding of racial bias by a preponderance of evidence. Id., at 491–492.

B

While Apprendi only concerned a judicial finding that increased the statutory maximum, the logic of Apprendi prompted questions about the continuing vitality, if not validity, of McMillan’s holding that facts found to increase the mandatory minimum sentence are sentencing factors and not elements of the crime. We responded two years later in Harris v. United States,
536 U. S. 545
, where we considered the same statutory provision and the same question before us today.

In Harris, the defendant was charged, under §924(c) (1)(A), with carrying a firearm in the course of committing a drug trafficking crime. The mandatory minimum sentence based on the jury’s verdict alone was five years, but the District Court imposed a 7-year mandatory minimum sentence based on its finding, by a preponderance of evidence, that the defendant also brandished the firearm. As in this case, Harris challenged his sentence on the ground that the 7-year mandatory minimum sentence was unconstitutional under Apprendi, even though the judge’s finding did not alter the maximum sentence to which he was exposed. Harris, supra, at 551.

The Court declined to apply Apprendi to facts that increased the mandatory minimum sentence but not the maximum sentence. 536 U. S., at 557. In the Court’s view, judicial factfinding that increased the mandatory minimum did not implicate the
Sixth Amendment. Because the jury’s verdict “authorized the judge to impose the minimum with or without the finding,” ibid., the Court was of the view that the factual basis for increasing the minimum sentence was not “ ‘essential’ ” to the defendant’s punishment. Id., at 560–561 (plurality opinion). Instead, it merely limited the judge’s “choices within the authorized range.” Id., at 567. From this, the Court drew a distinction between “facts increasing the defendant’s minimum sentence and facts extending the sentence beyond the statutory maximum,” id., at 566. The Court limited Apprendi’s holding to instances where the factual finding increases the statutory maximum sentence.

III

Alleyne contends that Harris was wrongly decided and that it cannot be reconciled with our reasoning in Apprendi. We agree.

A

The touchstone for determining whether a fact must be found by a jury beyond a reasonable doubt is whether the fact constitutes an “element” or “ingredient” of the charged offense. United States v. O’Brien,
560 U. S. 218
, ___ (2010) (slip op., at 5); Apprendi, supra, at 483, n. 10; J. Archbold, Pleading and Evidence in Criminal Cases 52 (5th Am. ed. 1846) (hereinafter Archbold). In Apprendi, we held that a fact is by definition an element of the offense and must be submitted to the jury if it increases the punishment above what is otherwise legally prescribed. 530 U. S., at 483, n. 10. While Harris declined to extend this principle to facts increasing mandatory minimum sentences, Apprendi’s definition of “elements” necessarily includes not only facts that increase the ceiling, but also those that increase the floor. Both kinds of facts alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment. 530 U. S., at 483, n. 10; Harris, supra, at 579 (Thomas, J., dissenting). Facts that increase the mandatory minimum sentence are therefore elements and must be submitted to the jury and found beyond a reasonable doubt.

1

At common law, the relationship between crime and punishment was clear. As discussed in Apprendi, “[t]he substantive criminal law tended to be sanction-specific,” meaning “it prescribed a particular sentence for each offense.” Langbein, The English Criminal Trial Jury on the Eve of the French Revolution, in The Trial Jury in England, France, Germany 1700–1900, p. 36 (A. Schioppa ed. 1987) (quoted in Apprendi, supra, at 479). The system left judges with little sentencing discretion: once the facts of the offense were determined by the jury, the “judge was meant simply to impose [the prescribed] sentence.” Langbein, supra, at 36–37; see also 3 W. Blackstone, Commentaries on the Laws of England 396 (1768) (“The judgment, though pronounced or awarded by the judges, is not their determination or sentence, but the determination and sentence of the law” (emphasis deleted)). This Court has recognized that the same was true, in many instances, early on in this country. United States v. Grayson,
438 U. S. 41,
45 (1978)
; see, e.g., Commonwealth v. Smith, 1 Mass. 245 (1804) (describing state law that specified a punishment for larceny of damages three times the value of the stolen goods). While some early American statutes provided ranges of permissible sentences, K. Stith & J. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 9 (1998), the ranges themselves were linked to particular facts constituting the elements of the crime. E.g., Lacy v. State, 15 Wis. 13 (1862) (discussing arson statute that provided for a sentence of 7 to 14 years where the house was occupied at the time of the offense, but a sentence of 3 to 10 if it was not); Ga. Penal Code §§4324–4325 (1867) (robbery “by open force or violence” was punishable by 4 to 20 years’ imprisonment, while “[r]obbery by intimidation, or without using force and violence,” was punishable by 2 to 5 years’ imprisonment). This linkage of facts with particular sentence ranges (defined by both the minimum and the maximum) reflects the intimate connection between crime and punishment.

Consistent with this connection between crime and punishment, various treatises defined “crime” as consisting of every fact which “is in law essential to the punishment sought to be inflicted,” 1 J. Bishop, Criminal Procedure 50 (2d ed. 1872) (hereinafter Bishop), or the whole of the wrong “to which the law affixes . . . punishment,” id., §80, at 51. See also 1 J. Bishop, New Criminal Procedure §84, p. 49 (4th ed. 1895) (defining crime as “that wrongful aggregation [of elements] out of which the punishment proceeds”); Archbold 128 (defining crime to include any fact that “annexes a higher degree of punishment”). Numerous high courts agreed that this formulation “accurately captured the common-law understanding of what facts are elements of a crime.” Apprendi, 530 U. S., at 511–512 (Thomas, J., concurring) (collecting cases). If a fact was by law essential to the penalty, it was an element of the offense.

2

From these widely recognized principles followed a well-established practice of including in the indictment, and submitting to the jury, every fact that was a basis for imposing or increasing punishment. While an exhaustive history need not be recounted here, see id., at 501–509 (Thomas, J., concurring) (detailing practices of American courts from the 1840’s onward), a few particularly salient examples illustrate the point. In Hope v. Commonwealth, 50 Mass. 134 (1845), the defendant was indicted for (and convicted of) larceny. The larceny statute established two levels of sentencing based on whether the value of the stolen property exceeded $100. Because punishment varied with value, the state high court found that value was an element of the offense:

“Our statutes, it will be remembered, prescribe the punishment for larceny, with reference to the value of the property stolen; and for this reason, as well as because it is in conformity with long established practice, the court are of [the] opinion that the value of the property alleged to be stolen must be set forth in the indictment.” Id., at 137.

Numerous other contemporaneous court decisions reflect this same understanding. See, e.g., Ritchey v. State, 7 Blackf. 168, 169 (Ind. 1844) (holding that indictment for arson must allege value of property destroyed, because statute set punishment based on value); United States v. Fisher, 25 F. Cas. 1086 (No. 15,102) (CC Ohio 1849) (McLean, J.) (“A carrier of the mail is subject to a higher penalty where he steals a letter out of the mail, which contains an article of value. And when this offense is committed, the indictment must allege the letter contained an article of value, which aggravates the offense and incurs a higher penalty”).

A number of contemporaneous treatises similarly took the view that a fact that increased punishment must be charged in the indictment. As one 19th-century commentator explained:

“Where a statute annexes a higher degree of punishment to a common-law felony, if committed under particular circumstances, an indictment for the offence, in order to bring the defendant within that higher degree of punishment, must expressly charge it to have been committed under those circumstances, and must state the circumstances with certainty and precision. [2 M. Hale, Pleas of the Crown *170].” Archbold 51 (15th ed. 1862).

Another explained that “the indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted.” Bishop §81, at 51. This rule “enabled [the defendant] to determine the species of offence” with which he was charged “in order that he may prepare his defence accordingly . . . and that there may be no doubt as to the judgment which should be given, if the defendant be convicted.” Archbold 44 (emphasis added). As the Court noted in Apprendi, “[t]he defendant’s ability to predict with certainty the judgment from the face of the felony indictment flowed from the invariable linkage of punishment with crime.” 530 U. S., at 478.

B

Consistent with common-law and early American practice, Apprendi concluded that any “facts that increase the prescribed range of penalties to which a criminal defendant is exposed” are elements of the crime. Id., at 490 (internal quotation marks omitted); id., at 483, n. 10 (“[F]acts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition ‘elements’ of a separate legal offense”).
1
We held that the
Sixth Amendment provides defendants with the right to have a jury find those facts beyond a reasonable doubt. Id., at 484. While Harris limited Apprendi to facts increasing the statutory maximum, the principle applied in Apprendi applies with equal force to facts increasing the mandatory minimum.

It is indisputable that a fact triggering a mandatory minimum alters the prescribed range of sentences to which a criminal defendant is exposed. Apprendi, supra, at 490; Harris, 536 U. S., at 575, 582 (Thomas, J., dissenting). But for a finding of brandishing, the penalty is five years to life in prison; with a finding of brandishing, the penalty becomes seven years to life. Just as the maximum of life marks the outer boundary of the range, so seven years marks its floor. And because the legally prescribed range is the penalty affixed to the crime, infra, this page, it follows that a fact increasing either end of the range produces a new penalty and constitutes an ingredient of the offense. Apprendi, supra, at 501 (Thomas, J., concurring); see also Bishop §598, at 360–361 (if “a statute prescribes a particular punishment to be inflicted on those who commit it under special circumstances which it mentions, or with particular aggravations,” then those special circumstances must be specified in the indictment (emphasis added)); 1 F. Wharton, Criminal Law §371, p. 291 (rev. 7th ed. 1874) (similar).

It is impossible to dissociate the floor of a sentencing range from the penalty affixed to the crime. See Harris, supra, at 569 (Breyer, J., concurring in part and concurring in judgment) (facts increasing the minimum and facts increasing the maximum cannot be distinguished “in terms of logic”). Indeed, criminal statutes have long specified both the floor and ceiling of sentence ranges, which is evidence that both define the legally prescribed penalty. See, e.g., supra, at 7–8; N. Y. Penal Code §§231–232, p. 70 (1882) (punishment for first-degree robbery was 10 to 20 years’ imprisonment; second-degree robbery was 5 to 15 years); Va. Code ch. 192, §§1–2, p. 787 (2d ed. 1860) (arson committed at night was punishable by 5 to 10 years; arson committed during the day was 3 to 10 years). This historical practice allowed those who violated the law to know, ex ante, the contours of the penalty that the legislature affixed to the crime—and comports with the obvious truth that the floor of a mandatory range is as relevant to wrongdoers as the ceiling. A fact that increases a sentencing floor, thus, forms an essential ingredient of the offense.

Moreover, it is impossible to dispute that facts increasing the legally prescribed floor aggravate the punishment. Harris, supra, at 579 (Thomas, J., dissenting); O’Brien, 560 U. S., at ___ (Thomas, J., concurring in judgment) (slip op., at 2). Elevating the low-end of a sentencing range heightens the loss of liberty associated with the crime: the defendant’s “expected punishment has increased as a result of the narrowed range” and “the prosecution is empowered, by invoking the mandatory minimum, to require the judge to impose a higher punishment than he might wish.” Apprendi, supra, at 522 (Thomas, J., concurring). Why else would Congress link an increased mandatory minimum to a particular aggravating fact other than to heighten the consequences for that behavior? See McMillan, 477 U. S., at 88, 89 (twice noting that a mandatory minimum “ ‘ups the ante’ ” for a criminal defendant); Harris, supra, at 580 (Thomas, J., dissenting). This reality demonstrates that the core crime and the fact triggering the mandatory minimum sentence together constitute a new, aggravated crime, each element of which must be submitted to the jury.
2

Defining facts that increase a mandatory statutory minimum to be part of the substantive offense enables the defendant to predict the legally applicable penalty from the face of the indictment. See Apprendi, 530 U. S., at 478–479. It also preserves the historic role of the jury as an intermediary between the State and criminal defendants. See United States v. Gaudin, 515 U. S., at 510–511 (“This right was designed ‘to guard against a spirit of oppression and tyranny on the part of rulers,’ and ‘was from very early times insisted on by our ancestors in the parent country, as the great bulwark of their civil and political liberties’ ” (quoting 2 J. Story, Commentaries on the Constitution of the United States §§1779, 1780, pp. 540–541 (4th ed. 1873))); Williams v. Florida,
399 U. S. 78,
100 (1970)
(“[T]he essential feature of a jury obviously lies in [its] interposition between the accused and his accuser”); Duncan v. Louisiana,
391 U. S. 145,
155 (1968)
(“A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government”).

In adopting a contrary conclusion, Harris relied on the fact that the 7-year minimum sentence could have been imposed with or without a judicial finding of brandishing, because the jury’s finding already authorized a sentence of five years to life. 536 U. S., at 561. The dissent repeats this argument today. See post, at 5 (opinion of Roberts, C. J.) (“The jury’s verdict authorized the judge to impose the precise sentence he imposed for the precise factual reason he imposed it”). While undoubtedly true, this fact is beside the point.
3

As noted, the essential
Sixth Amendment inquiry is whether a fact is an element of the crime. When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury. It is no answer to say that the defendant could have received the same sentence with or without that fact. It is obvious, for example, that a defendant could not be convicted and sentenced for assault, if the jury only finds the facts for larceny, even if the punishments prescribed for each crime are identical. One reason is that each crime has different elements and a defendant can be convicted only if the jury has found each element of the crime of conviction.

Similarly, because the fact of brandishing aggravates the legally prescribed range of allowable sentences, it constitutes an element of a separate, aggravated offense that must be found by the jury, regardless of what sentence the defendant might have received if a different range had been applicable. Indeed, if a judge were to find a fact that increased the statutory maximum sentence, such a finding would violate the
Sixth Amendment, even if the defendant ultimately received a sentence falling within the original sentencing range (i.e., the range applicable without that aggravating fact). Cf. Hobbs v. State, 44 Tex. 353 (1875) (reversing conviction where the defendant was indicted for a crime punishable by 2 to 5 years and sentenced to 3 years because the trial court improperly instructed the jury to sentence the defendant between 2 to 10 years if it found a particular aggravating fact); State v. Callahan, 109 La. 946, 33 So. 931 (1903) (finding ex post facto violation where a newly enacted law increased the range of punishment, even though defendant was sentenced within the range established by the prior law).
4
The essential point is that the aggravating fact produced a higher range, which, in turn, conclusively indicates that the fact is an element of a distinct and aggravated crime. It must, therefore, be submitted to the jury and found beyond a reasonable doubt.

Because there is no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum, Harris was inconsistent with Ap-prendi. It is, accordingly, overruled.
5

C

In holding that facts that increase mandatory minimum sentences must be submitted to the jury, we take care to note what our holding does not entail. Our ruling today does not mean that any fact that influences judicial discretion must be found by a jury. We have long recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the
Sixth Amendment. See, e.g., Dillon v. United States, 560 U. S. ___, ___ (2010) (slip op., at 11) (“[W]ithin established limits[,] . . . the exercise of [sentencing] discretion does not contravene the
Sixth Amendment even if it is informed by judge-found facts” (emphasis deleted and internal quotation marks omitted)); Apprendi, 530 U. S., at 481 (“[N]othing in this history suggests that it is impermissible for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judgment within the range prescribed by statute”).
6
This position has firm historical roots as well. As Bishop explained:

“[W]ithin the limits of any discretion as to the punishment which the law may have allowed, the judge, when he pronounces sentence, may suffer his discretion to be influenced by matter shown in aggravation or mitigation, not covered by the allegations of the indictment.” Bishop §85, at 54.

“[E]stablishing what punishment is available by law and setting a specific punishment within the bounds that the law has prescribed are two different things.” Apprendi, supra, at 519 (Thomas, J., concurring). Our decision today is wholly consistent with the broad discretion of judges to select a sentence within the range authorized by law.

IV

Here, the sentencing range supported by the jury’s verdict was five years’ imprisonment to life. The District Court imposed the 7-year mandatory minimum sentence based on its finding by a preponderance of evidence that the firearm was “brandished.” Because the finding of brandishing increased the penalty to which the defendant was subjected, it was an element, which had to be found by the jury beyond a reasonable doubt. The judge, rather than the jury, found brandishing, thus violating petitioner’s
Sixth Amendment rights.

Accordingly, we vacate the Sixth Circuit’s judgment with respect to Alleyne’s sentence on the §924(c)(1)(A) conviction and remand the case for resentencing consistent with the jury’s verdict.

It is so ordered.

__________________________________

1
In Almendarez-Torres v. United States,
523 U. S. 224 (1998)
, we recognized a narrow exception to this general rule for the fact of a prior conviction. Because the parties do not contest that decision’s vitality, we do not revisit it for purposes of our decision today.

2
Juries must find any facts that increase either the statutory maximum or minimum because the
Sixth Amendment applies where a finding of fact both alters the legally prescribed range and does so in a way that aggravates the penalty. Importantly, this is distinct from factfinding used to guide judicial discretion in selecting a punishment “within limits fixed by law.” Williams v. New York,
337 U. S. 241,
246 (1949)
. While such findings of fact may lead judges to select sentences that are more severe than the ones they would have selected without those facts, the
Sixth Amendment does not govern that element of sentencing. Infra, at 15–17, and n. 6.

3
Apprendi rejected an argument similar to the one advanced in Harris. In Apprendi, the State of New Jersey argued that increasing the defendant’s statutory maximum on the challenged count did not violate the
Sixth Amendment because “the judge could have imposed consecutive sentences,” in conjunction with other counts, to produce the sentence that the defendant actually received on the count at issue. 530 U. S., at 474. We found that this possibility did not preclude a
Sixth Amendment violation. Ibid.

4
Many criminal statutes allow for this possibility. For example, an Illinois law provides for a sentence of 2 to 10 years’ imprisonment for intimidation, Ill. Comp. Stat., ch. 720, §5/12–6(b) (West 2010), and 3 to 14 years for aggravated intimidation, §5/12–6.2(b). The elements of aggravated intimidation include all the elements of intimidation plus one enumerated aggravating fact. Under this statute, if a jury found each element of intimidation, but the judge purported to find a fact that elevated the offense to aggravated intimidation, the
Sixth Amendment would most certainly be violated, even if the defendant received a sentence that fell within both ranges. See also La. Rev. Stat. Ann. §§14:51, 14:52 (West 2007) (sentencing range for simple arson is 2 to 15 years; sentencing range for aggravated arson is 6 to 20 years); Mont. Code Ann. §§45–5–302(2), 5–303(2) (2011) (sentencing range for kidnapping is 2 to 10 years, but 2 to life for aggravated kidnapping).

5
The force of stare decisis is at its nadir in cases concerning procedural rules that implicate fundamental constitutional protections. Because Harris is irreconcilable with the reasoning of Apprendi and the original meaning of the
Sixth Amendment, we follow the latter.

6
See also United States v. Tucker,
404 U. S. 443,
446 (1972)
(judges may exercise sentencing discretion through “an inquiry broad in scope, largely unlimited either as to the kind of information [they] may consider, or the source from which it may come”); Williams v. New York,
337 U. S. 241,
246 (1949)
(“[B]oth before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law”).

SUPREME COURT OF THE UNITED STATES

_________________

No. 11–9335

_________________

ALLEN RYAN ALLEYNE, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the fourth circuit

[June 17, 2013]

Justice Alito, dissenting.

The Court overrules a well-entrenched precedent with barely a mention of stare decisis. See ante, at 16, n. 6. Stare decisis is, of course, not an “inexorable command” in the field of constitutional law. Payne v. Tennessee,
501 U. S. 808,
828 (1991)
. Nevertheless, the Court ought to be consistent in its willingness to reconsider precedent. If Harris v. United States,
536 U. S. 545 (2002)
, and McMillan v. Pennsylvania,
477 U. S. 79 (1986)
, can be cast aside simply because a majority of this Court now disagrees with them, that same approach may properly be followed in future cases. See Arizona v. Gant,
556 U. S. 332
–364 (2009) (Alito, J., dissenting).

If the Court is of a mind to reconsider existing precedent, a prime candidate should be Apprendi v. New Jersey,
530 U. S. 466 (2000)
. Although Apprendi purported to rely on the original understanding of the jury trial right, there are strong reasons to question the Court’s analysis on that point. See, e.g., Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 Yale L. J. 1097, 1123–1132 (2001) (critiquing the historical evidence relied upon by the Apprendi majority and concurrence, and concluding (1) that the “broad judicial discretion” characteristic of eighteenth-century common-law misdemeanor sentencing “undercuts the suggestion that sentencing was the sacred province of juries alone,” (2) that even the “nineteenth-century tradition was not uniform, suggesting that the common law had no fixed rule on the subject,” and (3) that “no eighteenth-century evidence link[ed] this [nineteenth-century] tradition back to the time of the Founding”); Little & Chen, The Lost History of Apprendi and the Blakely Petition for Rehearing, 17 Fed. Sentencing Rep. 69, 69–74 (2004) (“Blakely and Apprendi were undoubtedly founded on an erroneous historical un-derstanding of the Framers’ views in 1790 when they wrote the 6th Amendment’s jury-trial guarantee. The fact that the Framers themselves wrote over a dozen indeterminate sentencing ranges in the first federal crime bill (see
1Stat.
112–118 . . .), has simply been overlooked by the Court”); Mitchell, Apprendi’s Domain, 2006 Sup. Ct. Rev. 297, 298–299 (2006) (arguing, in the context of defending a broader conception of the jury right, that “Apprendi’s historical claim that sentencing enhancements were treated as ‘elements’ of offenses whenever they increased a de-fendant’s maximum punishment is demonstrably mis-taken” and that “the platitudes from Joel Prentiss Bishop’s nineteenth-century treatises, which the pro-Apprendi Justices repeatedly invoke to support this assertion [that sentencing enhancements that increased a maximum pun-ishment were treated as elements of the offense], are pat-ently false and did not accurately describe the law in actual court decisions of that era” (footnotes omitted)).

The Court’s decision creates a precedent about precedent that may have greater precedential effect than the dubious decisions on which it relies.*

__________________________________

1
* Speaking for herself, Justice Ginsburg, and Justice Kagan—but not for the Court—Justice Sotomayor argues that Harris’ stare decisis value is undermined by the subsequent reasoning of the Court’s Apprendi line of cases and by the fact that no one rationale in Harris commanded five votes. I disagree.
In my view, Harris’ force is not vitiated by the Court’s Apprendi line of cases, for two reasons. First, that line of cases is predicated on a purported
Sixth Amendment requirement that juries find facts that increase maximum penalties, not mandatory minimums. Accordingly, as The Chief Justice’s dissent persuasively explains, ante, at 1–7, Apprendi and its progeny have no impact on the distinct question resolved by Harris, which does not bear on the jury right. Second, the Apprendi line is now too intellectually incoherent to undermine any “contrary” precedents. If the rationale of Apprendi—which, as broadly construed by the Court in this case, is that “[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt,” ante, at 1—were taken seriously, discretionary sentencing, as prescribed by
18 U. S. C. §3553(a), should also be held to violate the
Sixth Amendment. But a majority of the Court has not been willing to go where its reasoning leads.
Nor can it be correct to say that “Harris in no way strengthens the force of stare decisis in this case” because a “ ‘majority of the Court expressly disagreed with the rationale of [a] plurality.’ ” Ante, at 3–4 (Sotomayor, J., concurring) (quoting Seminole Tribe of Fla. v. Florida,
517 U. S. 44,
66 (1996)
). Decisions in which no one rationale commands a majority of the Court—including prominent decisions based on the views of a single Justice—are often thought to have precedential effect. See, e.g., United States v. Booker,
543 U. S. 220 (2005)
; Regents of Univ. of Cal. v. Bakke,
438 U. S. 265
–272 (1978) (opinion of Powell, J.). And, of course, if Harris is not entitled to stare decisis weight, then neither is the Court’s opinion in this case. After all, only four Members of the Court think that the Court’s holding is the correct reading ofthe Constitution. See ante, at 1–3 (Breyer, J., concurring in part and concurring in judgment).
As she concedes, ante, at 4, Justice Sotomayor’s concurrence is nec-essarily selective in its discussion of the factors that the Court has previously found to be relevant to the application of stare decisis. For example, she does not argue—presumably because there is no good argument to be made—that Harris and McMillan v. Pennsylvania,
477 U. S. 79 (1986)
(which provide the framework under which criminal prosecutions have been carried out for at least the past 27 years) have proved “ ‘unworkable.’ ” Vieth v. Jubelirer,
541 U. S. 267,
306 (2004)
(plurality opinion) (quoting Payne v. Tennessee,
501 U. S. 808,
827 (1991)
). Nor does she contend that “circumstances” outside the Court “have changed so radically as to undermine [Harris’] critical factual assumptions.” Randall v. Sorrell,
548 U. S. 230,
244 (2006)
(plurality opinion). Indeed, no party or amicus has cited any such circumstances.
In short, other than the fact that there are currently five Justices willing to vote to overrule Harris, and not five Justices willing to overrule Apprendi, there is no compelling reason why the Court overrules the former rather than the latter. If the opportunity arises in the future to overrule Apprendi or the present case—both of which presumably involve “procedural rules . . . that do not govern primary conduct and do not implicate the reliance interests of private parties,” ante, at 2 (Sotomayor, J., concurring)—the precedent the Court sets today will be relevant to the issue of stare decisis.

SUPREME COURT OF THE UNITED STATES

_________________

No. 11–9335

_________________

ALLEN RYAN ALLEYNE, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the fourth circuit

Suppose a jury convicts a defendant of a crime carrying a sentence of five to ten years. And suppose the judge says he would sentence the defendant to five years, but because he finds that the defendant used a gun during the crime, he is going to add two years and sentence him to seven. No one thinks that this violates the defendant’s right to a jury trial in any way.

Now suppose the legislature says that two years should be added to the five year minimum, if the judge finds that the defendant used a gun during the crime. Such a provision affects the role of the judge—limiting his discretion—but has no effect on the role of the jury. And because it does not affect the jury’s role, it does not violate the jury trial guarantee of the
Sixth Amendment.

The Framers envisioned the
Sixth Amendment as a protection for defendants from the power of the Government. The Court transforms it into a protection for judges from the power of the legislature. For that reason, I respectfully dissent.

I

In a steady stream of cases decided over the last 15 years, this Court has sought to identify the historical understanding of the
Sixth Amendment jury trial right and determine how that understanding applies to modern sentencing practice. Our key sources in this task have been 19th-century treatises and common law cases identifying which facts qualified as “elements” of a crime, and therefore had to be alleged in the indictment and proved to a jury beyond a reasonable doubt. See, e.g., Apprendi v. New Jersey,
530 U. S. 466
–483, 489–490, n. 15 (2000) (collecting sources); id., at 501–518 (Thomas, J., concurring) (same). With remarkable uniformity, those authorities provided that an element was “whatever is in law essential to the punishment sought to be inflicted.” 1 J. Bishop, Criminal Procedure 50 (2d ed. 1872); see also Apprendi, supra, at 489, n. 15 (“ ‘[T]he indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted’ ” (quoting United States v. Reese,
92 U. S. 214,
232 (1876)
(Clifford, J., dissenting))); 1 Bishop, supra, §87, at 55 (an indictment must include “any particular fact which the law makes essential to the punishment”).

Judging that this common law rule best reflects what the Framers understood the
Sixth Amendment jury right to protect, we have struck down sentencing schemes that were inconsistent with the rule. In Apprendi, for example, the defendant pleaded guilty to a crime that carried a maximum sentence of ten years. After his plea, however, the trial judge determined that the defendant had committed the crime with a biased purpose. Under a New Jersey law, that finding allowed the judge to impose up to ten additional years in prison. Exercising that authority, the judge sentenced the defendant to 12 years. 530 U. S., at 469–471.

Because the sentence was two years longer than would have been possible without the finding of bias, that finding was “essential to the punishment” imposed. 1 Bishop, supra, at 50; see Apprendi, 530 U. S., at 491–492. Thus, in line with the common law rule, we held the New Jersey procedure unconstitutional. Id., at 497.

Subsequent cases have worked out how this principle applies in other contexts, such as capital sentencing regimes, state and federal sentencing guidelines, or criminal fines. See Ring v. Arizona,
536 U. S. 584 (2002)
; Blakely v. Washington,
542 U. S. 296 (2004)
; United States v. Booker,
543 U. S. 220 (2005)
; Southern Union Co. v. United States, 567 U. S. ___ (2012). Through all of them, we have adhered to the rule, rooted in the common law understanding described above, that we laid down in Apprendi: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U. S., at 490; see Blakely, supra, at 301 (quoting above statement); Booker, supra, at 231 (same); Southern Union Co., supra, at ___ (slip op., at 3) (same); see also Ring, supra, at 588–589 (
Sixth Amendment “does not permit a defendant to be ‘expose[d] . . . to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone’ ” (quoting Apprendi, supra, at 483; alterations in original).

We have embraced this 19th-century common law rule based not only on a judgment that it reflects the understanding in place when the
Sixth Amendment was ratified, but also on the “need to give intelligible content to the right of jury trial.” Blakely, supra, at 305. As Justice Scalia wrote in Apprendi, it is unclear “what the right to trial by jury does guarantee if . . . it does not guarantee . . . the right to have a jury determine those facts that determine the maximum sentence the law allows.” 530 U. S., at 498–499 (concurring opinion).

After all, if a judge’s factfinding could authorize a sentence beyond that allowed by the jury’s verdict alone, the jury trial would be “a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.” Blakely, supra, at 306–307. The Framers clearly envisioned a more robust role for the jury. They appreciated the danger inherent in allowing “justices . . . named by the crown” to “imprison, dispatch, or exile any man that was obnoxious to the government, by an instant declaration, that such is their will and pleasure.” 4 W. Blackstone, Commentaries on the Laws of England 343 (1769). To guard against this “violence and partiality of judges appointed by the crown,” the common law “wisely placed th[e] strong . . . barrier, of . . . trial by jury, between the liberties of the people, and the prerogative of the crown.” Ibid. The
Sixth Amendment therefore provided for trial by jury as a “double security, against the prejudices of judges, who may partake of the wishes and opinions of the government, and against the passions of the multitude, who may demand their victim with a clamorous precipitancy.” J. Story, Commentaries on the Constitution of the United States §924, p. 657 (Abr. 1833); see also The Federalist No. 83, p. 499 (C. Rossiter ed. 1961) (A. Hamilton) (discussing criminal jury trial as a protection against “judicial despotism”). Our holdings that a judge may not sentence a defendant to more than the jury has authorized properly preserve the jury right as a guard against judicial overreaching.

II

There is no such risk of judicial overreaching here. Under
18 U. S. C. §924(c)(1)(A)(i), the jury’s verdict fully authorized the judge to impose a sentence of anywhere from five years to life in prison. No additional finding of fact was “essential” to any punishment within the range. After rendering the verdict, the jury’s role was completed, it was discharged, and the judge began the process of determining where within that range to set Alleyne’s sentence.

Everyone agrees that in making that determination, the judge was free to consider any relevant facts about the offense and offender, including facts not found by the jury beyond a reasonable doubt.

“[B]oth before and since the American colonies became a nation, courts . . . practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.” Williams v. New York,
337 U. S. 241,
246 (1949)
.

As Apprendi itself recognized, “nothing in this history suggests that it is impermissible for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judgment within the range prescribed by statute.” 530 U. S., at 481 (emphasis deleted); see also Dillon v. United States, 560 U. S. __, __ (2010) (slip op., at 11). And the majority does not dispute the point. Ante, at 15 (“Our ruling today does not mean that any fact that influences judicial discretion must be found by a jury.”). Thus, under the majority’s rule, in the absence of a statutory mandatory minimum, there would have been no constitutional problem had the judge, exercising the discretion given him by the jury’s verdict, decided that seven years in prison was the appropriate penalty for the crime because of his finding that the firearm had been brandished during the offense.

This approach is entirely consistent with Apprendi. As I have explained, Apprendi’s constraint on the normal legislative control of criminal procedure draws its legitimacy from two primary principles: (1) common law understandings of the “elements” of a crime, and (2) the need to preserve the jury as a “strong barrier” between defendants and the State. Neither of those principles supports the rule the majority adopts today.

First, there is no body of historical evidence supporting today’s new rule. The majority does not identify a single case holding that a fact affecting only the sentencing floor qualified as an element or had to be found by a jury, nor does it point to any treatise language to that effect. Ante, at 8–10. To be sure, the relatively recent vintage of mandatory minimum sentencing enhancements means that few, if any, 19th-century courts would have encountered such a fact pattern. So I do not mean to suggest that the absence of historical condemnation of the practice conclusively establishes its constitutionality today. But given that Apprendi’s rule rests heavily on affirmative historical evidence about the practices to which we have previously applied it, the lack of such evidence on statutory minimums is a good reason not to extend it here.

Nor does the majority’s extension of Apprendi do anything to preserve the role of the jury as a safeguard between the defendant and the State. That is because even if a jury does not find that the firearm was brandished, a judge can do so and impose a harsher sentence because of his finding, so long as that sentence remains under the statutory maximum. The question here is about the power of judges, not juries. Under the rule in place until today, a legislature could tell judges that certain facts carried certain weight, and require the judge to devise a sentence based on that weight—so long as the sentence remained within the range authorized by the jury. Now, in the name of the jury right that formed a barrier between the defendant and the State, the majority has erected a barrier between judges and legislatures, establishing that discretionary sentencing is the domain of judges. Legislatures must keep their respectful distance.

I find this new rule impossible to square with the historical understanding of the jury right as a defense from judges, not a defense of judges. See Apprendi, supra, at 498 (Scalia, J., concurring) (“Judges, it is sometimes necessary to remind ourselves, are part of the State”). Just as the
Sixth Amendment “limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury,” Blakely, 542 U. S., at 308, so too it limits legislative power only to the extent that power infringes on the province of the jury. Because the claimed infringement here is on the province of the judge, not the jury, the jury right has no work to do.

IV

The majority offers several arguments to the contrary. I do not find them persuasive.

First, the majority asserts that “because the legally prescribed range is the penalty affixed to the crime, it follows that a fact increasing either end of the range produces a new penalty and constitutes an ingredient of the offense.” Ante, at 11 (citation omitted). The syllogism trips out of the gate, for its first premise—that the constitutionally relevant “penalty” includes the bottom end of the statutory range—simply assumes the answer to the question presented. Neither of the historical sources to which the majority points gives an answer: The Bishop treatise speaks only to situations in which “a statute prescribes a particular punishment,” not a range of possible punishments. 1 Bishop, Criminal Procedure §598, at 360–361. The Wharton treatise is similarly unhelpful, focusing on statutes that change the maximum or alter the nature of the common law crime. See 1 F. Wharton, Criminal Law §371, p. 291 (rev. 7th ed. 1874). The sources provided in the Apprendi concurrence offer no support, for as already discussed, we lack historical evidence about the treatment of facts that altered only the floor of a sentencing range.

Second, the majority observes that “criminal statutes have long specified both the floor and ceiling of sentence ranges, which is evidence that both define the legally prescribed penalty.” Ante, at 11. Again, though, this simply assumes the core premise: That the constitutionally relevant “penalty” involves both the statutory minimum and the maximum. Unless one accepts that premise on faith, the fact that statutes have long specified both floor and ceiling is evidence of nothing more than that statutes have long specified both the floor and the ceiling. Nor does it help to say that “the floor of a mandatory range is as relevant to wrongdoers as the ceiling.” Ante, at 12. The meaning of the
Sixth Amendment does not turn on what wrongdoers care about most.

More importantly, legal rules frequently focus on the maximum sentence while ignoring the minimum, even though both are “relevant” to punishment. Closest to this case, the question whether the jury right applies at all turns on whether the maximum sentence exceeds six months—not, say, whether the minimum punishment involves time in prison. Blanton v. North Las Vegas,
489 U. S. 538,
543 (1989)
; see also Lewis v. United States,
518 U. S. 322,
326 (1996)
(“In evaluating the seriousness of the offense, we place primary emphasis on the maximum prison term authorized”). Likewise, the rights to vote and to bear arms are typically denied to felons—that is, those convicted of a crime with a maximum sentence of more than one year in prison. See Richardson v. Ramirez,
418 U. S. 24,
48 (1974)
; District of Columbia v. Heller,
554 U. S. 570,
626 (2008)
; Black’s Law Dictionary 694 (9th ed. 2009). Examples of other distinctions turning only on maximum penalties abound, as in cases of recidivism enhancements that apply only to prior convictions with a maximum sentence of more than a specified number of years. See, e.g.,
18 U. S. C. §924(e)(2). That a minimum sentence is “relevant” to punishment, and that a statute defines it, does not mean it must be treated the same as the maximum sentence the law allows.

Third, the majority offers that “it is impossible to dispute that facts increasing the legally prescribed floor aggravate the punishment.” Ante, at 12. This argument proves too much, for it would apply with equal force to any fact which leads the judge, in the exercise of his own discretion, to choose a penalty higher than he otherwise would have chosen. The majority nowhere explains what it is about the jury right that bars a determination by Congress that brandishing (or any other fact) makes an offense worth two extra years, but not an identical determination by a judge. Simply calling one “aggravation” and the other “discretion” does not do the trick.

Fourth, the majority argues that “[i]t is no answer to say that the defendant could have received the same sentence with or without” a particular factual finding, pointing out “that a defendant could not be convicted and sentenced for assault, if the jury only finds the facts for larceny, even if the punishments prescribed for each crime are identical.” Ante, at 14. In that hypothetical case, the legislature has chosen to define two crimes with two different sets of elements. Courts must, of course, respect that legislative judgment. But that tells us nothing about when courts can override the legislature’s decision not to create separate crimes, and instead to treat a particular fact as a trigger for a minimum sentence within the already-authorized range.

* * *

I will not quibble with the majority’s application of our stare decisis precedents. But because I believe the majority’s new rule—safeguarding the power of judges, not juries—finds no support in the history or purpose of the
Sixth Amendment, I respectfully dissent.

SUPREME COURT OF THE UNITED STATES

_________________

No. 11–9335

_________________

ALLEN RYAN ALLEYNE, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the fourth circuit

[June 17, 2013]

Justice Breyer, concurring in part and concurring in the judgment.

Eleven years ago, in Harris v. United States,
536 U. S. 545 (2002)
, I wrote that “I cannot easily distinguish Apprendi v. New Jersey,
530 U. S. 466 (2000)
, from this case in terms of logic.” Id., at 569 (opinion concurring in part and concurring in judgment). I nonetheless accepted Harris’ holding because I could “[n]ot yet accept [Ap-prendi’s] rule.” 536 U. S., at 569. I continue to disagree with Apprendi. See 536 U. S., at 569–570; United States v. Booker,
543 U. S. 220,
326 (2005)
(opinion dissenting in part); Blakely v. Washington,
542 U. S. 296,
328 (2004)
(dissenting opinion); Apprendi, supra, at 555 (same). But Apprendi has now defined the relevant legal regime for an additional decade. And, in my view, the law should no longer tolerate the anomaly that the Apprendi/Harris distinction creates.

The Court’s basic error in Apprendi, I believe, was its failure to recognize the law’s traditional distinction between elements of a crime (facts constituting the crime, typically for the jury to determine) and sentencing facts (facts affecting the sentence, often concerning, e.g., the manner in which the offender committed the crime, and typically for the judge to determine). The early historical references that this Court’s opinions have set forth in favor of Apprendi refer to offense elements, not to sentencing facts. Thus, when Justice Story wrote that the
Sixth Amendment’s guarantee of trial by jury offered “ ‘securit[y] against the prejudices of judges,’ ” post, at 4 (Roberts, C. J., dissenting) (quoting Commentaries on the Consti-tution of the United States §924, p. 657 (Abr. 1833)), he was likely referring to elements of a crime; and the best answer to Justice Scalia’s implicit question in Apprendi—what, exactly, does the “right to trial by jury” guarantee?—is that it guarantees a jury’s determination of facts that constitute the elements of a crime. 530 U. S., at 498–499 (concurring opinion).

Although I have set forth these minority views before, see Booker, supra, at 326 (opinion dissenting in part); Blakely, supra, at 328 (dissenting opinion); Apprendi, su-pra, at 555 (same), I repeat this point now to make clear why I cannot accept the dissent’s characterization of the
Sixth Amendment as simply seeking to prevent “judicial overreaching” when sentencing facts are at issue, post, at 4. At the very least, the Amendment seeks to protect defendants against “the wishes and opinions of the government” as well. Ibid. (quoting Story, supra, §924, at 657). And, that being so, it seems to me highly anomalous to read Apprendi as insisting that juries find sentencing facts that permit a judge to impose a higher sentence while not insisting that juries find sentencing facts that require a judge to impose a higher sentence. See Harris, supra, at 569–570 (opinion of Breyer, J.).

To overrule Harris and to apply Apprendi’s basic jury-determination rule to mandatory minimum sentences would erase that anomaly. Where a maximum sentence is at issue, Apprendi means that a judge who wishes to im-pose a higher sentence cannot do so unless a jury finds the requisite statutory factual predicate. Where a mandatory minimum sentence is at issue, application of Apprendi would mean that the government cannot force a judge who does not wish to impose a higher sentence to do so unless a jury finds the requisite statutory factual predicate. In both instances the matter concerns higher sentences; in both instances factfinding must trigger the increase; in both instances jury-based factfinding would act as a check: in the first instance, against a sentencing judge wrongly imposing the higher sentence that the judge believes is appropriate, and in the second instance, against a sentencing judge wrongly being required to impose the higher sentence that the judge believes is inappropriate.

While Harris has been the law for 11 years, Apprendi has been the law for even longer; and I think the time has come to end this anomaly in Apprendi’s application. Consequently, I vote to overrule Harris. I join Parts I, III–B, III–C, and IV of the Court’s opinion and concur in its judgment.

SUPREME COURT OF THE UNITED STATES

_________________

No. 11–9335

_________________

ALLEN RYAN ALLEYNE, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the fourth circuit

I join the opinion of the Court, which persuasively explains why Harris v. United States,
536 U. S. 545 (2002)
, and McMillan v. Pennsylvania,
477 U. S. 79 (1986)
, were wrongly decided. Under the reasoning of our decision in Apprendi v. New Jersey,
530 U. S. 466 (2000)
, and the original meaning of the
Sixth Amendment, facts that increase the statutory minimum sentence (no less than facts that increase the statutory maximum sentence) are elements of the offense that must be found by a jury and proved beyond a reasonable doubt. Ante, at 1.

Of course, under our doctrine of stare decisis, establishing that a decision was wrong does not, without more, justify overruling it. While stare decisis is not an “inexorable command,” Hohn v. United States,
524 U. S. 236,
251 (1998)
(internal quotation marks omitted), it is “a basic self-governing principle within the Judicial Branch, which is entrusted with the sensitive and difficult task of fashioning and preserving a jurisprudential system that is not based upon ‘an arbitrary discretion,’ ” Patterson v. McLean Credit Union,
491 U. S. 164,
172 (1989)
(quoting The Federalist, No. 78, p. 490 (H. Lodge ed. 1888) (A. Hamilton)). We generally adhere to our prior decisions, even if we question their soundness, because doing so “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee,
501 U. S. 808,
827 (1991)
. To protect these important values, we require a “ ‘ “special justification” ’ ” when departing from precedent. Dickerson v. United States,
530 U. S. 428,
443 (2000)
.

A special justification is present here. As an initial matter, when procedural rules are at issue that do not govern primary conduct and do not implicate the reliance interests of private parties, the force of stare decisis is reduced. See United States v. Gaudin,
515 U. S. 506,
521 (1995)
; Payne, 501 U. S., at 828. And any reliance interest that the Federal Government and state governments might have is particularly minimal here because prosecutors are perfectly able to “charge facts upon which a mandatory minimum sentence is based in the indictment and prove them to a jury.” Harris, 536 U. S., at 581 (Thomas, J., dissenting). Indeed, even with Harris in place, prosecutors already sometimes charge such facts and seek to prove them to a jury. See Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 26. That is precisely what happened here, where the verdict form allowed the jury to find whether petitioner had brandished a firearm yet the jury declined to make such a finding. Ante, at 2.

In this context, stare decisis does not compel adherence to a decision whose “underpinnings” have been “eroded” by subsequent developments of constitutional law. Gaudin, 515 U. S., at 521. In rejecting a constitutional challenge to a state statute that increased a defendant’s minimum sentence based on judicial factfinding, McMillan relied on a distinction between “elements” and “sentencing factors.” 477 U. S., at 86. That distinction was undermined by Apprendi, where we held that a legislature may not “remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.” 530 U. S., at 490 (internal quotation marks omitted).

In Harris, we squarely confronted the question whether “McMillan stands after Apprendi.” 536 U. S., at 550. Five Members of the Court recognized that the cases were in fact incompatible. See id., at 569 (Breyer, J., concurring in part and concurring in judgment); id., at 572, 583 (Thomas, J., dissenting) (“[O]nly a minority of the Court embrac[es] the distinction between McMillan and Apprendi that forms the basis of today’s holding”). In the control-ling opinion, Justice Breyer nevertheless declined to apply Apprendi to mandatory minimums because, though he found no way to distinguish sentencing floors from sentencing ceilings, he could not “yet accept” Apprendi itself. 536 U. S., at 569; see also post, at 1 (Breyer, J., concurring in part and concurring in judgment).

We have said that a decision may be “of questionable precedential value” when “a majority of the Court expressly disagreed with the rationale of [a] plurality.” Seminole Tribe of Fla. v. Florida,
517 U. S. 44,
66 (1996)
. And Harris has stood on especially weak ground because its vitality depended upon the possibility that the Court might retreat from Apprendi. See Harris, 536 U. S., at 569–570 (opinion of Breyer, J.). That has not happened. Instead, while individual Members of this Court have continued to question Apprendi, see post, at 1–2 (opinion of Breyer, J.); post, at 1–2 (Alito, J., dissenting), its rule has become even more firmly rooted in the Court’s
Sixth Amendment jurisprudence in the decade since Harris. We have applied Apprendi to strike down mandatory sentencing systems at the state and federal levels. See Cunningham v. California,
549 U. S. 270 (2007)
; United States v. Booker,
543 U. S. 220 (2005)
; Blakely v. Washington,
542 U. S. 296 (2004)
. And just last Term, we recognized that Apprendi’s reasoning extends to criminal fines. See Southern Union Co. v. United States, 567 U. S. ___ (2012).

As a result of these decisions, Harris has become even more of an outlier. For that reason, I agree that it is appropriate for the Court to “overrule Harris and to apply Apprendi’s basic jury-determination rule to mandatory minimum sentences” in order to “erase th[is] anomaly” in our case law. Post, at 2–3 (opinion of Breyer, J.). I do not suggest that every single factor that supports the overruling of precedent is present here. Post, at 3, n. * (Alito, J., dissenting). But particularly in a case where the reliance interests are so minimal, and the reliance interests of private parties are nonexistent, stare decisis cannot excuse a refusal to bring “coherence and consistency,” Patterson, 491 U. S., at 174, to our
Sixth Amendment law.

If any doubt remained, our decision in Ring v. Arizona,
536 U. S. 584 (2002)
, should remove it. Ring considered an Apprendi challenge to Arizona’s capital sentencing system. There, as here, the government urged us to adhere to a pre-Apprendi decision upholding that scheme. See Walton v. Arizona,
497 U. S. 639 (1990)
. And there, as here, we resisted that plea. Ring, 536 U. S., at 609. This case differs in only one respect: Our post-Apprendi consideration of the issue in Harris. But for the reasons given, Harris in no way strengthens the force of stare decisis in this case. With Apprendi now firmly rooted in our jurisprudence, the Court simply gives effect to what five Members of the Court recognized in Harris: “[McMillan] and Apprendi are irreconcilable; our
Sixth Amendment jurisprudence cannot be home to both.” 536 U. S., at 609.

Justice Alito is therefore mistaken when he suggests that the Court overrules Harris because “there are currently five Justices willing to vote to” do so. Post, at 3, n. *. No doubt, it would be illegitimate to overrule a precedent simply because the Court’s current membership disagrees with it. But that is not a plausible account of the decision today. The Court overrules McMillan and Harris because the reasoning of those decisions has been thoroughly undermined by intervening decisions and because no significant reliance interests are at stake that might justify adhering to their result. Likewise, Justice Alito exaggerates when he suggests that this case creates an important “precedent about precedent.” Post, at 2. Rarely will a claim for stare decisis be as weak as it is here, where a constitutional rule of criminal procedure is at issue that a majority of the Court has previously recognized is incompatible with our broader jurisprudence. And finally, Justice Alito’s contention that Apprendi and Harris stand on equal footing for stare decisis purposes, post, at 1–2, 3–4, n. *, is simply inconsistent with our last decade of
Sixth Amendment jurisprudence.

Because I believe that the Court’s decision to apply Apprendi to mandatory minimums is consistent with stare decisis principles, I join the opinion of the Court.

This case is about who gets to decide the facts that trigger a mandatory minimum sentence.

Any fact that entitles a prosecution by law to a sentence more severe than a judge could otherwise impose must be found by the jury beyond a reasonable doubt.

Under Harris, the government is entitled--

Justice Sonia Sotomayor: Counsel, could you address an issue that's very important to me, the one of stare decisis.

And so, that -- hone in on that.

Mary E. Maguire: --Yes, Justice Sotomayor.

I do not believe that stare decisis poses a problem for the Court in this case, because Harris was a plurality opinion.

And while four of the justices found that -- I'm sorry, five of the justices voted to uphold McMillan, only four of the justices found that McMillan was consistent with Apprendi.

And so we have a plurality opinion, and for our constitutional issue, we do not believe that Harris--

Justice Sonia Sotomayor: Well, the problem is, whether you're right or wrong -- and you're absolutely right, it was a plurality opinion -- your adversary says States have passed laws relying on it, the Federal system is now structured around it, why isn't the damage as great as they claim?

Potential damage, I should say.

Mary E. Maguire: --Well, first of all, I would just note that even though McMillan was decided in 1986, there is nothing in the legislative history that indicates that Congress referred on McMillan when it passed 924(c).

In addition, 924(c) is silent as to who should be the fact-finder that triggers the mandatory minimum.

And finally, in the McMillan case, that was not really a Sixth Amendment case--

Justice Sonia Sotomayor: Address, please, the practical consequences.

Mary E. Maguire: --Certainly.

Justice Sonia Sotomayor: How many -- how many Federal courts are you aware are already charging the 924(c) facts to a jury, notwithstanding the -- the fact that it's not required?

Mary E. Maguire: Yes, I would say that there is little to no practical effect if the Court is to adopt a rule, because the majority of the Federal courts are already -- and Federal prosecutors are already -- alleging these facts in the indictment and proving them to a jury beyond a reasonable doubt.

And I think that this case is the exact example of that.

It was alleged in the indictment.

It went to the jury, the jury got a special verdict form, so there is no difficulty in implementing this rule--

Justice Samuel Alito: Isn't your position that a decision of this Court is not entitled to stare decisis protection if there isn't a majority opinion in that case?

Mary E. Maguire: --Yes, Your Honor.

I do not believe that Harris has precedential value, because it is a plurality opinion.

In our--

Justice Samuel Alito: I can think of some pretty important decisions of this Court that were not the result of a majority opinion.

Do you want us to adopt that as a blanket rule?

Mary E. Maguire: --No, Your Honor, but I would note that in constitutional questions like this one, stare decisis is at its weakness -- weakest.

I would also--

Justice Samuel Alito: All right.

Constitutional decisions of this Court not decided with the majority opinion, no stare decisis effect.

That's your argument?

Mary E. Maguire: --Well, and also, Your Honor, what I think is significant in this case in terms of the issue of stare decisis is that McMillan was not a Sixth Amendment case.

McMillan was decided more on due process grounds.

And the only discussion of the Sixth Amendment in McMillan comes in the last paragraph, when it talks of the fact that the defendant has no right to jury sentencing.

And so for those reasons, we do not believe that stare decisis poses a problem.

Justice Antonin Scalia: You haven't distinguished McMillan.

You've distinguished Harris.

How do you distinguish McMillan?

Your only grounds for distinguishing that is it was not a Sixth Amendment case, even though the opinion refers to the Sixth Amendment?

Mary E. Maguire: Well, Your Honor, it does in fact refer to the Sixth Amendment in the very last paragraph.

But what McMillan was mostly concerned about was a due process claim--

Justice Antonin Scalia: I don't care about “ mostly ”.

The issue is whether McMillan was a Sixth Amendment case, in part or in whole.

And I don't know how you can say it wasn't.

We -- we don't decide cases on what a case mostly says.

We decide on what it says.

Mary E. Maguire: --That's absolutely--

Justice Ruth Bader Ginsburg: Ms. Maguire, you don't -- you don't have to take the position that there's no stare decisis effect.

In a unanimous -- and a recent unanimous decision of this Court, obviously, would carry more weight than one that has a plurality opinion, so you don't have to say -- it isn't a question of yes or no, it's a question of the degrees of respect that we would give to our former decision.

And in fact the other factors that the Court considers when looking at stare decisis is: What were the margins of vote on the previous cases, and McMillan was decided on a 5-4 decision, whereas Harris, as we've noted, was a plurality decision.

Both opinions were found over spirited dissents.

They have been criticized by this Court and the lower courts, and in all of those instances we believe that stare decisis is at its weakest.

Justice Samuel Alito: Well, I think it's important for this Court to have a consistent doctrine of stare decisis.

The doctrine can't be We will overrule decisions that we don't like, but we will stick with decisions that the majority does like.

So I'm still looking for your understanding of what stare decisis means in constitutional cases.

Now, with the suggestion of Justice Ginsburg, I gather that your position is if it's a narrow decision then it's -- stare decisis has less weight; is that it?

Now, what other factors?

So it has less weight.

Why isn't it controlling, though?

Why does it have insufficient weight here?

Mary E. Maguire: Because, Justice Alito, another thing that you look to when you are considering stare decisis is whether or not the rule is workable, whether or not the prior decision was badly reasoned, and those are other factors that the Court can consider.

And if you look at this Court's Sixth Amendment jurisprudence as it has developed since Apprendi, then in Booker, then in Blakely, then in Cunningham, what we are asking for today is a logical--

Justice Elena Kagan: But why is this not workable?

I mean, you can -- you can argue about whether it was right or wrong.

You can argue about whether it has created some incongruity in the system.

But haven't the last number of years suggested that it's perfectly workable?

Everybody knows what they are supposed to do, everybody does it.

Why -- why is this not workable?

Mary E. Maguire: --Well, the Harris rule is not workable on a practical level because what happens under the Harris rule is the government is entitled to a fact that drives a more severe punishment, that never goes to the jury.

And what we are asking here is that the court find that where there is a fact that triggers a mandatory minimum, that that fact be found by the jury.

Justice Sonia Sotomayor: Can I say--

Chief Justice John G. Roberts: That sounds like -- that sounds like an argument that it's wrong and that is, of course, the first step in the stare decisis analysis.

It doesn't sound to me responsive to Justice Kagan's question as in what sense is it unworkable.

Mary E. Maguire: Well, I think it becomes unworkable in the drug cases, Your Honor, and in the 9841 statute, because what you have there is you have in some circuits people alleging drug weight, but in other circuits you have what is called mixing and matching.

And as long as the statutory maximum does not exceed 20 years, the prosecutors are not alleging the drug weights in the indictment.

And that becomes unworkable and quite confusing to the courts.

And the lower courts have criticized the Harris rule primarily in cases like Krieger and others that we -- are cited in our amicus brief, that the rule is somewhat unworkable.

Justice Antonin Scalia: Why wouldn't that be a problem if the question had to be decided by the jury?

Why does -- why does requiring it to be decided by the jury eliminate that problem of the mixing or not mixing?

Mary E. Maguire: Well, asking it to be found by a jury solves the problem because it allows the fact to go to the jury, the jury finds it, and we have a long history in this country that jury verdicts drive punishment.

And so the idea is that the punishment that somebody is open to should be driven by the jury verdict.

Justice Ruth Bader Ginsburg: You mentioned drug weight.

Let's -- so you're making -- your argument would mean that drug weight also has to be found by the jury, because that can -- the length of the sentence can depend on the -- the drug weight.

Mary E. Maguire: If the drug weight is going to trigger a mandatory minimum, Your Honor, yes, we would say that under our rule that that would have to be alleged in the indictment and proved to the jury beyond a reasonable doubt, which, as our amicus briefs point out, is being done already in the majority of circuits throughout the country.

And so this is not going to put any additional burden on the prosecutors to be doing this, and fundamentally what it does is that it levels the playing field, because what it does in trial situations is it allows a defendant to know exactly what it is that the government is going to prove.

The government then has to bring in those witnesses at the time of trial so that they can be cross-examined on this fact that is going to trigger the mandatory minimum in their case, and so it helps level the playing field in that regard.

Justice Samuel Alito: Now, if you were defending a case involving drug weight and your client maintained that he or she had nothing to do with these drugs, how would you proceed?

Your argument would be: They're not my drugs, but if they were my drugs, they weren't -- they didn't weigh more than one kilo.

Mary E. Maguire: Well, Justice Alito, those are strategical questions that come up in every trial case that we have.

And you have to decide as a trial lawyer what your theory of the defense is going to be.

It's simply going to be, I wasn't there, or you may decide to challenge the drug weight.

But those -- those strategic decisions exist whether or not the Court adopts this rule or doesn't adopt the rule.

Justice Anthony Kennedy: But the question was, what -- what strategic decision do you think the lawyer should make?

Mary E. Maguire: Well, any strategic decision a lawyer makes is going to depend on the individual facts of the case.

For example--

Justice Anthony Kennedy: So you -- but Justice Alito has a real problem.

What -- don't you put the defense in a very difficult position?

Mary E. Maguire: --You don't put the defense in a very difficult position, because in fact if you adopt our rule we believe that you are protecting the defendant's Sixth Amendment right to a jury because this is a fact that is going to be triggering a mandatory minimum.

And if the government has to prove it, they then have to bring in the witness to the trial, who is then subject to cross-examination, which is a far more--

Justice Anthony Kennedy: But isn't it difficult for you to say he had nothing to do with the drugs plus the drugs didn't weigh more than a certain amount?

Mary E. Maguire: --I don't believe that that is difficult, and I believe that those are decisions that you make in every case.

For example, in the case -- in this case, in Mr. Alleyne's case--

Justice Anthony Kennedy: I think that I am hearing that in every case you are going to want witnesses, you are going to insist on a jury determination of the amount.

That's kind of what I'm hearing.

Mary E. Maguire: --That is the rule, Justice Kennedy, that we are asking the Court to adopt, that if there's a fact--

Mary E. Maguire: --Well, it doesn't put defense counsel in a difficult position at all, because those are the same decisions that you make whether or not you adopt this rule or you don't adopt this rule.

Justice Anthony Kennedy: Well, we're not getting far with this.

But one answer you could say is that in order to preserve the constitutional right you want us to have a bifurcated trial.

I thought you might say that.

Mary E. Maguire: No, we are not -- we are not asking for a bifurcated trial.

Justice Elena Kagan: Ms. Maguire, could I take you to a different kind of question?

Mary E. Maguire: --Certainly.

Justice Elena Kagan: Let's assume that there were a statute and it said carrying a gun is an offense and that the range is 5 to 10 years.

I realize it goes up further in the real word, but let's just say 5 to 10 years.

And Congress said in setting the penalty within that range the judge shall consider whether the defendant brandished the gun and whether the defendant discharged the gun.

Now -- and that's all the statute said.

That would be constitutional, is that not right?

Mary E. Maguire: Yes, Justice Kagan, that would be constitutional, because it doesn't have the mandatory effect.

Justice Elena Kagan: Okay.

So it's constitutional for the judge to say, 7 years because you brandished, 9 years because you discharged.

So what makes it unconstitutional, what makes it a violation of the Sixth Amendment, when now Congress just provides something extra in the statute?

It says, not just you shall consider brandishing and discharging, but if you find brandishing you get 7, if you find discharging, you get 9.

Mary E. Maguire: Okay.

What makes that unconstitutional is because you are stripping the judge of all authority, and by operation of law you are telling that judge that, you must impose this sentence.

Justice Elena Kagan: Well, that seems right as a definitional matter, as a descriptive matter.

But I guess the question I'm having difficulty with is why does that matter for purposes of the Sixth Amendment?

The jury is doing the exact same thing, which is the jury isn't doing anything in either of my examples.

So the only difference between example number one, which you said was constitutional, and example number two is that now Congress is giving further instruction to the judge, but nothing more is being taken away from the jury, is it?

Mary E. Maguire: Well, yes, it is, because in your second hypothetical where it is the mandatory minimum, which is exactly what we have in this case, this notion that somehow Congress is channelling discretion is a fiction, because what it does is it tells the judge, you must impose 7 years and you cannot even consider what is authorized by the jury verdict in this case.

And the jury verdict in this case authorized a range of 5 years as the bottom.

And so what happens is when you have Congress coming in and saying that if you find this fact on a mere preponderance standard you must impose 7 years, then you are stripping the defendant of the benefit of the full jury verdict in this case, which authorized a range that had a lower floor than that called for by the Federal statute.

Justice Antonin Scalia: Ms. Maguire, could you repeat the first sentence you uttered in this argument?

I hesitated to jump in so early, but could you repeat it verbatim?

Maybe you had committed it to memory.

Good -- good counsel often does that.

Mary E. Maguire: Thank you, Justice Scalia.

My very first sentence was: This case is about who gets to decide the facts that trigger a mandatory minimum sentence.

Justice Antonin Scalia: No, that wasn't it.

[Laughter]

Chief Justice John G. Roberts: It started “ Mr. Chief Justice ”.

[Laughter]

Justice Antonin Scalia: I think what you said was: Who has to decide a fact which causes a defendant to be subject to a penalty that he would not otherwise be subject to?

And the fact is that in the case of a mandatory minimum the defendant could have been given that mandatory minimum.

It was up to the judge.

So this mandatory minimum does not increase the penalty to which the defendant is subject.

He's subject in Justice Kagan's example to any penalty between 1 years -- 1 year and 10.

The judge, even without the statute that she mentioned, could have given him 7 years because he brandished a gun.

There is really no -- no increase in the penalty to which he is exposed.

And I thought that is what Apprendi addressed, any increase in the penalty to which you are exposed, so that when you decide, I'm going to rob a bank, you know, when you go in, you are going to get between 1 and 10 years, and with a mandatory minimum you get between 1 and 10 years.

So what's the complaint as far as Apprendi is concerned?

Mary E. Maguire: The complaint is that -- and why we believe that the rule we are asking the Court to adopt, Justice Scalia, is a natural -- it follows the logic of Apprendi, is because in both cases you have judicial factfinding that's leading to a more harsh sentence.

In your--

Justice Antonin Scalia: It isn't leading to a more harsh -- more harsh sentence.

That's the whole point of Apprendi: Does it lead to a sentence which is greater than the judge would otherwise be authorized to impose?

And in the case of a mandatory minimum, it never is.

The judge could impose that if he was a hanging judge.

You know, you have some hanging judges; you have some bleeding heart judges.

And -- and what a mandatory minimum simply says is, you know, we don't care what kind of a judge you are, at least this much.

And I think that's the position of the government, that somehow mandatory minimums channel discretion within a range.

That is a fiction because the judge is being told, You must impose this.

You have no choice.

You cannot go below this.

That is the whole nature of a mandatory minimum, and so this--

Justice Sonia Sotomayor: --Do you have any statistics on at least 924(c) of how often the greater is the sentence than the absolute minimum required by law?

Mary E. Maguire: --Well, Justice Sotomayor, this Court found in O'Brien, and I think that it's also cited in the Lucas briefs and Dorsey briefs that this Court is holding, that the majority of all defendants convicted under 924(c) are, in fact, sentenced at the mandatory minimum.

Justice Sonia Sotomayor: So, in effect, your argument is that fixing a sentence is different than giving a judge discretion because it ignores the fact that a judge might have given you less?

Mary E. Maguire: That is exactly right.

Justice Antonin Scalia: That seems to me--

Justice Sonia Sotomayor: So it's depriving you of the constitutional right to have a jury decide what your sentence could be?

Mary E. Maguire: That is exactly right.

Justice Sonia Sotomayor: Of having a judge decide what your sentence could be?

Mary E. Maguire: That is exactly right, and it's further depriving you -- it is depriving the defendant of liberty interests.

It is imposing a stigma, and it is entitling the prosecutor to a greater and more severe punishment.

Chief Justice John G. Roberts: I'm not sure that that's -- you've emphasized several times that it takes away the discretion of the judge.

That seems to me to be a matter between Congress and the Judiciary and not a Sixth Amendment question.

Mary E. Maguire: Well, Mr. Chief Justice, actually the language of this Court in Apprendi said that

"It is unconstitutional for the legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. "

And that is exactly what's happening in this context because--

Justice Elena Kagan: Well, Apprendi goes both ways.

I mean, that's the best sentence for you in Apprendi, but there are other sentences in Apprendi which more go towards what Justice Scalia suggested, that the question was increasing it above the maximum that the jury authorized.

So I'm not sure that we can get from the language of Apprendi -- and I guess the question is as a matter of principle.

I completely understand why a defendant would care about this.

The question is, does it -- does it create a Sixth Amendment violation, which is, you know, the jury has to do this, when -- when Congress is decreasing the judge's discretion, but it's -- either way the jury isn't deciding this.

Mary E. Maguire: --Well, Justice Kagan, we do believe the Sixth Amendment is implicated because we think the history of the Sixth Amendment in this country shows that the role of the jury is the buffer between the citizen meant to protect and the government.

And mandatory minimums give the prosecution far much power and, in fact, if you do not adopt our rule and -- and make the government have to prove it beyond a reasonable doubt, what happens is then the average citizen does not get the benefit of a jury verdict and his sentence is not driven wholly by the jury verdict, because in this case we had a jury verdict, the government alleged the fact, we had a special verdict form, and the jury failed to find that fact.

As a result of that, then, the range that Mr. Alleyne should have been exposed was a 5-year mandatory minimum and for the constitutional argument assuming a maximum of life.

Here what happened, then, at the sentencing hearing was on a mere preponderance the judge had to impose seven.

And so we believe that is where you have the Sixth Amendment problem, because the defendant--

Justice Antonin Scalia: --You quoted Apprendi correctly as saying that the jury has to decide any fact which increases the sentence to which the defendant is exposed.

That's the language you quoted, and it's accurate.

Why does a mandatory minimum increase the sentence to which the defendant is exposed?

He could get the mandatory minimum sentence, even if there were no mandatory minimum prescribed.

He is exposed to a sentence of 1 to 10 years.

A mandatory minimum says, You must impose 7 years if he brandishes.

But the sentence to which he is exposed is 1 to 10 years.

And the mandatory minimum does not change that at all.

He is at risk for 1 to 10 years.

Mary E. Maguire: --Well, I understand that that may not change the exposure.

What it does on a practical level is it prevents the judge from even considering anything less than the 7 years.

Justice Antonin Scalia: That's true.

Mary E. Maguire: And that becomes the problem.

Justice Antonin Scalia: That's true, but you must acknowledge that that's not the theory of Apprendi.

Mary E. Maguire: Well, I think the theory of Apprendi if you -- if you take it out to its logical step is that if you have judicial fact finding that is resulting in a more harsh sentence being imposed, then, in fact, you have a Sixth Amendment problem.

And so what happens on a mandatory minimum is that if a judge finds the mandatory minimum a more harsh sentence is being imposed, because as an example in this case, the judge could not even consider giving the 5-year year floor as a mandatory minimum, which we've already noted is, in fact, how most criminal defendants are sentenced under the 924(c) statute at the mandatory minimum level.

Justice Antonin Scalia: I think the logic of Apprendi is that the jury has to decide it if it increases the sentence to which the defendant is exposed, not if it eliminates some discretion of the Court.

He's exposed.

Justice Sonia Sotomayor: How about Booker?

What did Booker do--

Mary E. Maguire: Well, I think--

Justice Sonia Sotomayor: --to the logic of Apprendi?

Mary E. Maguire: --Justice Sotomayor, what I believe that Booker did is that Booker indicated that when you have a fact that drives -- a finding of fact that drives a mandatory sentence to be imposed, that obviously that was the Sixth Amendment problem.

Now, I understand and appreciate--

Justice Sonia Sotomayor: Even when the statutes had a higher maximum.

Mary E. Maguire: --That is correct, Your Honor.

Justice Sonia Sotomayor: Because the jury was -- because the judge was constrained within a different maximum.

Mary E. Maguire: That is correct, Your Honor.

Justice Sonia Sotomayor: Is that your argument here?

Mary E. Maguire: Yes.

And so what I believe is that what Booker indicates is that it is this mandatory effect which may -- and that is why this Court found, extending Apprendi in the Booker case, that in fact the guidelines then had to become advisory.

It is the mandatory effect of the fact finding that is essential in these cases.

Justice Antonin Scalia: It wasn't a mandatory minimum case, Booker was a case in which the maximum was increased on the basis of judge finding of fact.

The maximum was increased.

So under the situation in Booker, the -- the exposure of the defendant was indeed increased on the basis of judge fact finding.

Instead of 1 to 10, the statute in Booker said, If you brandish a gun, you can get 15.

That's a -- that's a quite different situation from saying, Yeah, you are still on the hook for 1 to 10, but if you brandish, you got to get 7.

Mary E. Maguire: Well, Justice Scalia, I think the concern in Booker was the mandatory nature of the guidelines, and while I would agree with you that this Court in its constitutional part of the Booker decision did, in fact, look to the increase in the maximums, it is the same problem.

You have judge -- judicial fact finding that is mandating a particular sentence.

Mary E. Maguire: Well, I believe that Booker is -- is entitled to greater weight because it was more recently decided by this Court, and I also believe that it is a more recent interpretation of this Court of the principles held in Apprendi.

I would like to reserve the remainder of my time.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Dreeben?

ORAL ARGUMENT OF MICHAEL R. DREEBEN ON BEHALF OF THE RESPONDENT

Michael R. Dreeben: Mr. Chief Justice, and may it please the Court:

This Court should adhere to its decision in Harris v. United States, which reaffirmed McMillan v. Pennsylvania, because those decisions properly respected the fact that a mandatory minimum divests the defendant of the right to judicial leniency.

Justice Sonia Sotomayor: Could I go back to a simple question on the stare decisis, the practicality question.

What is so impractical about letting a jury decide an issue that sets a mandatory sentence of any kind?

Why -- why are juries incapable of figuring out whether a gun was carried or brandished?

Why are they incapable of figuring out how many -- how much drugs were sold or whether someone was driven by any of the factors that States want to commit to judges, but the Sixth Amendment might require them to submit to juries?

Michael R. Dreeben: Justice Sotomayor, the government's argument here is not that juries are incapable of finding facts under the Federal statutes that involve mandatory minimums.

It's that Congress has sound reasons for wishing to allocate that factfinding to the sentencing process and that it is not unconstitutional for Congress to do so.

Justice Sonia Sotomayor: But what does that have to do with the needs, the constitutional need to make sure that juries are driving a fixed sentence of any kind?

Michael R. Dreeben: The -- the constitutional question, in my view, Justice Sotomayor, turns on whether there is a right to the mercy of a tenderhearted judge.

That is what a defendant loses when a judge finds a mandatory minimum fact.

Justice Stephen G. Breyer: No, no, it isn't quite.

I mean, the -- the linguistic difference, I agree with Justice Scalia and I agree with you, it turns on the word “ exposed ”.

I mean, if you state Apprendi's holding as it was just stated, this is a different case because you could in fact, if you were the defendant, have been sentenced to that anyway.

That's your argument.

Michael R. Dreeben: Correct.

Justice Stephen G. Breyer: Now, let's put it differently.

There is a fact in the world.

There's a gun or there wasn't a gun.

In the Apprendi case, if the fact turns out to be gun, you could get 2 more years.

All right?

We have to go to the jury.

Now, here there's a fact in the world, gun or not gun.

If it turns out not gun, you get a lower sentence, you could; and if it turns out to be the fact, gun, you can't -- the judge cannot put you in that box, he has to put you in a worse box.

He has to put you in a worse box.

He has to give you more than -- more than the 3 years, 2 years or 1 year.

He has to.

Okay?

Now, from the point of view of the defendant, worse or at least as bad.

From the point of view of Congress, same.

They drew some lines, want a judge to administer them, and they turn on facts, and the sentence very often will turn on those facts.

From the point of view of the judge, same.

It's the jury decides or he decides.

In the one case, his discretion is cut off to give a lower sentence; in the other case, his discretion is granted to give a higher sentence.

Now, I see tremendous similarities, though I grant you the words are different, but can you -- can you just explain--

Michael R. Dreeben: Justice Breyer, yes.

Justice Stephen G. Breyer: --why the difference in the words should overcome the fact that I can't think of a -- of a difference other than those words that happened to be used in Apprendi?

Michael R. Dreeben: Well, Justice Breyer, we have a chart in our brief that I think is addressed explicitly to the question that you are asking, and it's on page 36 of our brief.

And it illustrates the difference between an Apprendi situation and a Harris-McMillan situation.

So the government's gray brief.

And the point of the chart is this--

Justice Antonin Scalia: What page?

What page?

Michael R. Dreeben: --This is page 36 of the government's brief.

Justice Stephen G. Breyer: I'm afraid the other side was upside down and I saw what you meant.

Michael R. Dreeben: Okay.

The point of Apprendi is a jury cannot be reduced to low-level gatekeeping.

Congress cannot pass a statute that says it is a crime to assault someone and that's punishable by 1 year in prison, but if the crime involves rape then it's punishable by 10 years in prison, or if the crime involves attempted murder then it's punishable by up to life.

Congress can't do that, because it would diminish the role of the jury in finding the critical facts that constitute the crime that sets the defendant's maximum exposure.

Apprendi protects against that.

In a Harris situation, the defendant is already exposed to the maximum penalty that the defendant incurs under the statute, and that's what the second column illustrates.

The defendant who commits a section 924(c) crime knows that the defendant faces up to life in prison.

When the mandatory minimum comes along, it doesn't increase the defendant's exposure to the most severe punishment he can get; it divests the defendant of a degree of judicial discretion.

But the Sixth Amendment does not protect a right to judicial discretion.

Justice Sonia Sotomayor: You know, but that--

Justice Stephen G. Breyer: But--

Justice Sonia Sotomayor: --I'm sorry.

Justice Stephen G. Breyer: --That's the -- that's the -- you've used all the words, which do make the difference in your mind.

But my question--

Michael R. Dreeben: It's not just in my mind, Justice--

Justice Stephen G. Breyer: --is why should those words make a difference?

Look, in the one case, I'll be repeating myself, but I want you to see it, in the one case, presence of a fact or not means the defendant goes into a higher sentencing box.

And the other case, presence of a fact or not means that he cannot go into the low sentencing box.

Michael R. Dreeben: --And when he cannot--

Justice Stephen G. Breyer: In the one case, he cannot go into the low sentencing box; in the other case, he can't go into the high sentencing box.

I got that difference.

My only problem is, why does it make a difference?

Michael R. Dreeben: --It matters because the Sixth Amendment protects a right to a jury trial, it does not protect a right to judicial leniency.

Justice Stephen G. Breyer: No, it's not -- well, you can call it judicial leniency, but you could call the other judicial harshness.

I mean, what is in fact turning out--

Michael R. Dreeben: No, because in -- in the other situation, it protects the right of the jury to determine the ingredients of the crime that Congress has determined exposed the defendant--

Justice Stephen G. Breyer: --And here we have the ingredients of a crime that Congress has determined that you have to get the 5 years.

Michael R. Dreeben: --Well, we know--

Justice Stephen G. Breyer: I mean, in the one case you can say all that Apprendi did -- it never should have been decided; I mean, some of us thought that -- because in fact--

Justice Antonin Scalia: I wonder who that could have been.

[Laughter]

Justice Stephen G. Breyer: --all you're talking about there is that you are stopping the judge from exhibiting his otherwise discretion towards harshness, and that's a matter for judges.

I've heard all these arguments before, you see.

Michael R. Dreeben: --Well--

Justice Stephen G. Breyer: And I've just heard them in the context of harshness, and now I don't know why changing it to leniency makes them somehow more relevant.

They weren't apparently relevant in the first situation, so why are they relevant in this one?

Michael R. Dreeben: --They weren't relevant in the first situation, because if there is no cap from the maximum that a judge could impose based on judicial factfinding, the role of a jury can be shrunk to what the Court has called low-level gatekeeping.

That can never happen under a statute that increases only the mandatory minimum.

Justice Elena Kagan: Well, you said, Mr. Dreeben, and -- and I think it's -- it's a great question: Is the jury functioning as a low level gatekeeper under the Harris rule?

Because I could make the argument that in fact it is.

You know, you take a statute and it says, 5 and up for carrying, and 7 and up for brandishing, right?

And this isn't even a hypothetical.

This is pretty close to this case.

It goes to the jury, the jury says we think he was carrying, we do not think that he was brandishing, all right?

And then it goes to the judge.

And now the judge says, you know what, if I had my druthers, I would only give 5 years.

If I had my druthers, I absolutely would defer to the jury verdict, but I can't defer to the jury verdict because Congress has said I have to make this special factfinding, and the truth of the matter is I think he did brandish, and so I have to give 7 years.

So the judge is not deferring to the jury, and he's not deferring to the jury when he would prefer to do so.

I guess the question is: Isn't that in every practical sense -- doesn't the mandatory minimum effectively increase the maximum punishment that the -- that the defendant otherwise would get?

Michael R. Dreeben: Well, it certainly doesn't increase the maximum punishment that's authorized under the statute, and it doesn't prevent the judge from making the exact same finding by a preponderance of the evidence that the jury did not make beyond a reasonable doubt, and giving 7 years even if there were no mandatory minimums.

Justice Elena Kagan: Yes, but what I'm suggesting is that in the world of judges, you know, this -- the graph you wrote has very little difference in the Harris situation between five and seven, but in fact most judges want to give five.

I mean, that's the truth of the matter, that, you know, nobody's given a 97-year sentence.

So -- so the action in the criminal justice system is at this lower range.

And at this lower range, what the mandatory minimums do is effectively tell a judge that they cannot defer to a jury verdict.

Michael R. Dreeben: Well, it's first of all, not entirely accurate that judges do not give higher sentences than the minimum.

There are plenty of cases in which they do so.

If the 920--

Justice Ruth Bader Ginsburg: But--

Justice Elena Kagan: I know there are plenty of cases.

All I'm saying is it's not the unusual case to find ourselves in exactly this position, where the judge wants to give five, the jury wants to give five, the judge can't defer to the jury's verdict that it should be five.

The jury can find facts by a -- beyond a reasonable doubt, but when the judge is at sentencing, he is not operating under that burden, so the fact finding role of the jury--

Justice Anthony Kennedy: But you could say that with reference to the -- to the maximum.

Everything you said could be applied to the maximum, and Apprendi says you can't say that.

Michael R. Dreeben: --I don't think that it's quite true that everything that I said applies to the maximum, Justice Kennedy, because as the plurality opinion in Harris explained, once the court has been confronted with a defendant who's convicted, the judge's discretion extends up to the statutory maximum.

He can't use his fact finding ability to increase the defendant's exposure to criminal punishment.

Mandatory minimums can never do that.

The defendant is already exposed to the sentence that the judge could give.

And I grant you, Justice Kagan, that some judges might choose to give a lower sentence, but the fact that they might choose to reflects judicial leniency, tenderheartedness, something that the Sixth Amendment does not speak to.

Justice Ruth Bader Ginsburg: --How about in deference to the jury's finding?

I mean, in this -- this -- this very case, wasn't it so that the judge said, I could just say 7 years because it's within the range, but it would be dishonest of me to do that, wouldn't it?

I have to say seven because it's the mandatory minimum.

I think this is a case where the effect is shown graphically, that the judge says, I'm stuck with the stuck.

I would prefer five.

That's what the jury would lead me to do, but I'm -- my hands are tied, I cannot respect the jury's finding.

Michael R. Dreeben: I think, Justice Ginsburg, that the judge said he would be intellectually honest and not ignore the fact that the -- the finding of brandishing did trigger the mandatory minimum.

He did not say, I otherwise would have given five.

And I think that this case--

Justice Antonin Scalia: But is it the usual case that a judge when faced with his decision has before him a jury finding?

I -- that--

Michael R. Dreeben: --It's not the usual case, Justice Scalia.

Justice Antonin Scalia: --The petitioner is asking these cases to be thrown out even if there has been no jury finding.

Michael R. Dreeben: Correct.

Justice Antonin Scalia: And the judge says, you know, I have to decide whether he brandished or not; I think he brandished.

But I -- you know, the petitioner here wants to say, The judge cannot consider himself bound by a mandatory minimum.

It seems to me the unusual case in which you have a jury finding that the judge must ignore in -- in -- actually he doesn't ignore it, he goes along with it.

The jury may well be right that it's impossible to prove beyond a reasonable doubt that -- that the felon brandished a gun, but it's -- it -- it's quite easy to say that it's very likely he branded a gun -- brandished a gun, which is what the judge has to find.

So he's not even ignoring the jury finding.

Michael R. Dreeben: No, there is no inconsistency between it, and I think if you look at the way this case evolves, it's not even clear that the jury rejected brandishing.

What's very interesting about this case is it's possibly the best illustration of the unfairness problem that Justice Alito alluded to and that Justice Breyer has written about in his opinions.

The issue at trial in this case was identity.

Was the defendant actually the person sitting in the car while his accomplice walked up to the victim and -- and put a revolver into his neck and asked for money?

That was the issue at trial.

There was no discussion of brandishing whatsoever.

Nobody focused on it, and it allowed the defendant, after the jury rejected his identity argument, to go to the judge and say, Even though the jury has now found that my guy did it, he could not have foreseen that a gun would have been used.

Justice Sonia Sotomayor: Mr. Dreeben, can I go back to a point you made earlier?

You talked about a legislature not attempting to supplant the jury's role on the maximum.

You don't see the same danger -- we started out in a country where almost all sentencing was in the discretion of the judge; whatever crime you committed, the judge could decide where to sentence you.

As Apprendi and its subsequent progeny laid out, these sentencing changes that have come into existence have really come into existence the latter half of the last century.

What -- don't you fear that at some point the legislature will go back to the old system of supplanting the jury by just saying what it said in 924(c)?

Every single crime has a maximum of life.

And all the -- and every single fact that's going to set a real sentence for the defendant, a minimum, we're going to let the judge decide by a preponderance of the evidence.

The bottom line of my question is, when Apprendi was decided, what should be the driving force of protecting the jury system?

The deprivation of discretion, whether that's permissible or not, or whether a sentence is fixed in a range, whatever it might be, by a jury?

Michael R. Dreeben: Justice--

Justice Sonia Sotomayor: What's the better rule to keep both extremes from happening?

Michael R. Dreeben: --I think, Justice Sotomayor, that the Court recognized in Apprendi that its role was limited and to certain extent could be evaded by legislatures if they were inclined to do so.

Justice Antonin Scalia: Mr. Dreeben, I think that history is wrong.

In fact, the way the country started, there was no judicial discretion.

There were simply fixed penalties for crimes.

If you stole a horse, you were guilty of a felony and you would be hanged.

That's where we started.

Michael R. Dreeben: Well--

Justice Antonin Scalia: And I would think that the risk involved is whether if we come out the way that the petitioner here urges us to do, legislatures will consider going back to -- to where we started from, and simply saying, If you brandish, you get 7 years, period, with no discretion in the judge.

That, it seems to me, is the greater risk.

Michael R. Dreeben: --Well, Justice Scalia, I agree in part with both you and Justice Sotomayor on history.

In fact, if you look at the 1790 Crimes Act that the First Congress passed, many of the set sentences are determinant sentences.

Others of the sentences were -- were prescribed up to a certain amount of years, and within that, it was well understood that judges would find facts to graduate the penalties according to the gravity of the crime.

And what the legislatures have done in the 20th Century innovation of mandatory minimums within an otherwise authorized range, as you have with 924(c), is say, We would prefer that judges take into account brandishing and discharging as under Justice Kagan's hypothetical statute, but we would like to -- to do that in a uniform manner.

We know that they can find by a preponderance of the evidence that brandishing exists.

We know that many, if not most, judges would consider that worse than simple possession of a firearm in a crime of violence, and we want judges to behave consistently.

By proscribing consistency, they are acting in accord with the historical tradition of having determinate sentences, a tradition that this Court held in Chapman versus--

Justice Sonia Sotomayor: I'm sorry, the historical -- you said earlier that most of the historical evidence was that determinate sentences would be decided by juries; they found facts and a determinate sentence was given.

Michael R. Dreeben: --And there was no judicial discretion, which I think makes--

Justice Sonia Sotomayor: So what is the judicial discretion now?

You find by a preponderance of the evidence, and a mandatory minimum makes you give seven.

So where is the judicial discretion?

Michael R. Dreeben: --The judicial discretion is what the defendant is losing.

He is not losing the right to a jury trial because the very same verdict authorizes the judge to find brandishing and impose 7 years.

Justice Sonia Sotomayor: You think for a defendant in a constitutional right, that they are more -- that it's constitutional to have a determinate sentence at seven, and still constitutional and make the jury find it by a -- beyond a reasonable doubt and that it's still constitutional to have a determinative sentence of 7 years but have the jury find it by a preponderance of the evidence?

Michael R. Dreeben: To have the jury find it by a preponderance of the--

Justice Sonia Sotomayor: Those are -- those are equal?

Michael R. Dreeben: --It's not just my position that it's constitutional for a -- a judge to find mandatory minimum triggering facts by a preponderance.

I'm sure that a legislature could allocate that to a jury.

Justice Sonia Sotomayor: No, I know we said it in Harris; the question here before us today is--

Michael R. Dreeben: Yes.

And I think that -- that not only does it not contradict any decision of this Court to allow the judge to make those findings, it doesn't contradict the principle behind the jury trial right or the right to proof beyond a reasonable doubt.

Justice Stephen G. Breyer: Here's another way of putting the same point: With the mandatory minimum, the judge can't go below the 5 years, okay?

But you say, Well, he could have gone below the 5 years anyway, couldn't he have?

I mean, you -- he could have given you the 5 years anyway.

Sorry, he could have given you the 5 years anyway.

That's your point.

Michael R. Dreeben: Correct.

Justice Stephen G. Breyer: All right.

He could have given you the 5 years -- he could have given you the 5 years if you'd been -- if you had been convicted of a different crime.

Michael R. Dreeben: And that's the difference between this and Apprendi.

Justice Stephen G. Breyer: But why does that make a difference?

The best way I thought of putting it is the heading on page 6 of their reply brief is almost right, I think.

It says -- it's permitting judges to find facts by a preponderance of the evidence that compels sentences higher than a set of those permitted by the jury's verdict.

That's exactly what's going on here.

Michael R. Dreeben: Well--

Justice Stephen G. Breyer: And -- and I want to know, what is it?

And the trouble is--

Michael R. Dreeben: --That's--

Justice Stephen G. Breyer: --you're just going to say, Well, he could have given the same sentence anyway.

And I'm going to say, Well, so what, why does that matter?

Michael R. Dreeben: --It's descriptively accurate, but it says nothing about the constitutionality of the procedure.

And I think that it's very important to focus not only on the fact that stare decisis is in play, but that Apprendi has been a very history-driven area of the law.

Last term, when the Court extended Apprendi to fines, it has found an ample historic basis for doing so.

In this case, by comparison, there is no historical showing that would justify extending Apprendi to fines.

Not only is there no direct analogy to a 924(c) type statute, but the three pillars of their historical argument are extremely weak and strained analogies.

The first one is simply that to get a statutory crime that was parallel to a common law crime but differed, the prosecutor had to charge all of the elements of the statutory crime in the indictment.

That says nothing about mandatory minimum sentencing.

The second pillar of their historical argument is the procedure called benefit of clergy, which was a form of what Blackstone called a statute pardon, that allowed a defendant to avoid a capital sentence.

In the First Crimes Act in Section 31 in 1790, Congress said:

"Benefit of clergy shall not exist in the United States for any crime punishable by a capital sentence. "

Benefit of clergy has never been part of this country's Sixth Amendment heritage.

It was abolished before the Sixth Amendment was even ratified.

And the third pillar of their historical argument are three late 19th Century cases: Jones, Garcia, and Lacy, each of which involve statutes that both raised the maximum and the minimum, not a single one of them spoke about the Constitution.

None of them purported to define what a legislature could do if it wanted to raise only the minimum, and that's it.

And I would suggest to the Court that this kind of Gertrude Stein history where there's really no “ there ” there, is not sufficient to overturn the legislative prerogative to make uniform the findings of fact within a range--

Justice Elena Kagan: Mr. Dreeben, could I take you back to the principles involved?

Let's suppose that instead of this statute, which is 579, you had a statute which was five for carrying, five otherwise and then for brandishing, 40.

All right?

And maybe if we did discharge, then 60.

All right.

So a very large gap.

Is your argument still the same?

Michael R. Dreeben: --The constitutional argument is the same.

I think this Court's decision in O'Brien suggests that unless the legislature were absolutely clear about it, the Court would conclude that those would be deemed elements.

Justice Elena Kagan: But suppose the legislature--

Justice Antonin Scalia: I'm sorry.

I didn't hear your last word.

Those would be?

Michael R. Dreeben: Deemed elements.

Under the decision in O'Brien, where the machine gun finding raised the minimum to 30 years, the Court held that it should be deemed to be an element, but--

Justice Elena Kagan: --Suppose -- suppose that Congress is absolutely clear about it, and you say -- and I think that you're right, you've got to be right about this -- it's a constitutional matter, it's the same, but the hypothetical sort of suggests exactly what you said our inquiry ought to be, is that in a world like that, the jury is in fact functioning only as a low level gatekeeper.

Isn't that right?

Michael R. Dreeben: --No.

Justice Elena Kagan: And that the only reason we see it in the hypothetical a little bit more clearly is because the numbers are a bit more dramatic.

Michael R. Dreeben: I wouldn't suggest that the jury is being a low level gatekeeper in that situation, because the jury's verdict alone -- and this is a serious crime -- exposes the defendant to a life sentence.

This is a crime that involves either a predicate Federal crime of violence or a Federal drug trafficking crime, plus the use of the gun in it.

And I think Congress could reasonably expect that the worse the use of the gun, the more extreme, the higher the corresponding penalty.

And indeed if a 924(c) violation is charged by itself, and a defendant is an armed career criminal, then his sentencing range goes up to 360 months to life--

Justice Elena Kagan: If it's something deeply incongruous, isn't there, where you have an Apprendi rule which says if the maximum is, you know, five to seven, and then the judge says 7 years and a day, we're going to take that out.

But as a mandatory minimum that will leapfrog you from five to 40 doesn't get the same result?

Michael R. Dreeben: --It's not incongruous if you look at it from the point of view of the fact that the jury verdict itself allows a life sentence, and if the defendant draws the proverbial hanging judge who in his discretion or her discretion wants to give that life sentence, the defendant knew from day one when he committed the crime that if the jury finds him guilty of it, he's exposed to a life sentence.

And the Court in Apprendi said structural democratic constraints will preclude legislatures, or at least discourage them, from assigning maximum sentences to crimes that are higher than what the legislature deemed--

Justice Sonia Sotomayor: --So how about in O'Brien, if the legislature had said 40 years for a machine gun.

Would we -- how do we justify saying, No, that has to remain an element?

Under your theory, the democratic process didn't work.

Michael R. Dreeben: --No, I think that--

Justice Sonia Sotomayor: So how -- what would we do in that situation?

Michael R. Dreeben: --In that situation, the democratic process would have concluded that firearms brandishing, discharge or use of a machine gun is an extremely serious component of this crime.

We know judges will take that into account in sentencing.

We simply want them to take that into account in the same particularly harsh way.

And in -- in trying to achieve uniformity among judicial actors when finding facts at sentencing, which everybody knows that they will do, does not deprive the defendant of a right to a jury trial on the elements of the crime, it deprives him of the right to a judge who might show mercy under a particular set of facts.

And that simply is not the right that's embodied in the Sixth Amendment.

Justice Stephen G. Breyer: That's -- I don't know if you can add anything to this, but remember, I agree with you about the history, but I just apply it to Apprendi, too.

So the one--

Justice Antonin Scalia: It is so bad he wants to extend it.

[Laughter]

Justice Stephen G. Breyer: --I thought -- are you sure it was Gertrude Stein and not Dorothy Barker?

But I think you're probably right about that.

But the -- the -- I'm thinking of this as well, Apprendi, I see what they're thinking.

They're thinking that once you have to add the extra fact to get above the otherwise ceiling, it's like a new crime.

It isn't really a new crime, but it's like a new crime.

Okay?

But then I can say, Well, once you have to really cut off that 5 years and less and really send him to jail for 5 years, hey, that's just like a new crime.

It isn't really a new crime, but it's like a new crime.

So why can't I say everything that we said about Apprendi here, except I can't deny what you say, the judge could have given the sentence anyway.

That's absolutely right.

But all the other things, I can say.

Is that true?

Michael R. Dreeben: Well, I agree that you can say them, Justice Breyer--

Justice Stephen G. Breyer: But I mean, are they true?

[Laughter]

Michael R. Dreeben: --Respectfully, no.

We -- the critical point about Apprendi is by assigning the role of constitutional element status to a fact that increases the maximum, the Court has preserved the jury trial right against its reduction to essentially a formality on a particular subset of elements.

And the relationship of a crime that's covered by Apprendi and the so-called base crime is like a greater included offense and a lesser included offense.

Whereas, in the mandatory minimum situation, we know that the judge will be engaged in sentencing.

We know that the judge will find facts that extend beyond the elements of the crime to inform himself about how the basic crime is committed.

We also know that different judges may treat those facts differently after finding them by the preponderance of the evidence.

The mandatory minimum changes only one thing: It says, Judge, if you find this fact, brandishing or discharge, you will impose the same sentence as your neighboring judge down the hall, not a different one based on your different perception of sentencing philosophy.

So it allows the legislature to intervene after having defined a sufficiently serious enough crime and determine how the judges will treat those facts.

Justice Sonia Sotomayor: Why is the legislature being deprived of that right, if they give it to the jury?

Michael R. Dreeben: The legislature--

Justice Sonia Sotomayor: I mean, it seems to me that whether you give it to a jury or a judge, the legislature protects itself by declaring a minimum sentence.

Michael R. Dreeben: --There are many ways--

Justice Sonia Sotomayor: It determines the sentence, really.

Michael R. Dreeben: --There are many ways that a legislature could achieve a goal that allows the judge's fact finding to carry more weight.

For one thing, it could extend the maximum punishments and convert everything into an affirmative defense, which this Court said last week is constitutional.

The point is whether the defendant has really been divested of a jury trial right when he loses the right to the mercy of a judge.

Chief Justice John G. Roberts: Thank you, Mr. Dreeben.

Ms. Maguire, you have five minutes remaining.

REBUTTAL ARGUMENT OF MARY E. MAGUIRE ON BEHALF OF THE PETITIONER

Mary E. Maguire: It is the effect of the fact finding that is important, not what it is called.

A mandatory minimum does, in fact, increase the exposure that a defendant is -- is exposed to, because his range then goes from five to life, which was wholly authorized by the jury's verdict in this case, to seven to life, and that is an increase.

And we are not talking about a right to leniency, but a right for the judge to consider the full range that the jury authorized.

And I would note the language in Apprendi did, in fact, address this issue of range when it said:

"One need only look to the kind, degree, or range of punishment to which the prosecution is by law entitled for a given set of facts. "

Justice Clarence Thomas: This case comes to us on a writ of certiorari to United States Court of Appeals for the Fourth Circuit.

A jury found the petitioner Allen Ryan Alleyne guilty of multiple federal offenses for his participation in an armed robbery.

One of his convictions was for using a firearm in relation to a crime of violence.

That conviction carried a sentencing range of five year to life imprisonment, but if the Court found that petitioner brandished the gun, his mandatory sentence automatically increased to seven years.

At sentencing, the government presented evidence of brandishing to the judge.

The judge ultimately determined that petitioner had brandished a gun thus triggering the seven-year mandatory minimum.

Unable to impose a lower sentence, the judge sentenced petitioner seven years.

The Fourth Circuit affirmed petitioner sentence.

Petitioner claims that the application of the seven-year mandatory minimum violated his Sixth Amendment right to jury trial.

We agree.

We have long held that the Sixth Amendment requires each element of a crime to be proved to the jury beyond a reasonable doubt.

In order to enforce this right, we must know which facts can constitute elements of a crime.

Legislators have brought authority to define the elements of crimes, but this authority has limits.

In Apprendi versus New Jersey, we held that any fact other than the fact of a prior conviction that increases a defendant's maximum sentence is an element of the crime, even if the legislature did not label it as such.

We explained that this rule was consistent with the historical understanding of the jury trial right and helped to preserve the role of the jury as a buffer between the state and the criminal defendants.

This case requires us to decide whether facts increasing the mandatory minimum sentence are elements of the crime that must be proved to a jury beyond reasonable doubt.

Under Apprendi, any fact that exposes a defendant to a punishment greater than that otherwise legally prescribed is by definition and element of a separate legal offense.

We hold that this principle applies with equal force to facts that increased the mandatory minimum.

First, increasing the floor of a sentencing range alters the penalty attached to the crime because a floor and the ceiling have arranged together constitute a penalty.

Second, it is clear that moving the range upward even if only by racing the floor makes the punishment affixed to the crime more severe.

The defendants expected punishment has increased as a result of the narrowed range and the judge must impose a greater punishment if he finds the fact triggering the mandatory minimum even if he would rather impose a lower sentence.

Taking these two points together, it follows that facts increasing the mandatory minimum sentence are within the principle established by Apprendi and therefore, must be found by jury beyond reasonable doubt.

In this case, based on the jury's finding along, petitioner was only subject to a five-year mandatory minimum sentence.

However, the District Court applied a seven-year mandatory minimum based on it's finding that petitioner had brandished the gun.

For the above reasons and other reasons set forth in our opinion, we conclude that this sentence violated petitioner's Sixth Amendment right -- Sixth Amendment jury trial right.

We, therefore, vacate this -- his sentence on the firearm count and remand for resentencing.

Justice Sotomayor has filed a concurring opinion.

The Chief Justice has filed a dissenting opinion in which Justices Scalia and Kennedy have joined.